WP(C) No.1157/2010 Page 1 of 23 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on : 15th December, 2010 Judgment pronounced on : 20th December, 2010 + W.P.(C) 1157/2010 GOVT.OF NCT OF DELHI & ORS. ..... Petitioner Through: Ms.Jyoti Singh, Advocate. versus DR.DEEPAK KUMAR ..... Respondent Through: Mr.P.P.Khurana, Senior Advocate with Ms.Tamali Wad, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. Undisputably, we say so for the reason, learned senior counsel for the respondent conceded during arguments that the respondent Dr.Deepak Kumar was appointed on contract basis as a Medical Officer by the Government of NCT Delhi and was assigned to perform work at the Tihar Jail Complex. Initial contractual engagement was with effect from 16.1.2004 and the duration for which services had to be rendered was 6 months. Needless to state, a fixed monthly payment was made to Dr.Deepak Kumar as consideration for contractual service rendered by him. 2. It may be highlighted that no permanent, temporary or ad-hoc post was available and further it needs to be noted that the engagement was purely on contractual basis. WP(C) No.1157/2010 Page 2 of 23 3. From time to time the tenure of the contract was extended by 6 months each and the contract for employment was valid up to 30.9.2006 but was terminated vide a communication dated 3.7.2006 which reads as under:- “No./70/34/2005/H&FW/2053-55 Dated:3.7.2006 O R D E R The Lt.Governor, of NCT of Delhi is pleased to terminate the services of Dr. R.K.Govila & Dr.Deepak Kumar, Medical Officer, on contract basis working in Central Jail Hospital with immediate effect. Sd/- (DEVENDRA SHARMA) SUPDT.(HEALTH)” 4. It is apparent to the reader that the order terminating the contract of service is non-stigmatic and casts no aspersion upon Dr.Deepak Kumar. It may be noted that the order is composite qua two doctors i.e. Dr.R.K.Govila and Dr.Deepak Kumar, but we are concerned only with Dr.Deepak Kumar in the instant writ petition. 5. Being given contractual employment on 21.1.2004 for a period of 6 months, as noted herein above, the term of the contract was extended for a duration of 6 months each; relevant would it be to state that reason why term of the contract was extended was the fact that Dr.Deepak Kumar was rendering service to the satisfaction of his superiors evidenced by the fact that not only was the tenure of the contract periodically extended but also the fact certificates were issued certifying that services rendered by Dr.Deepak Kumar were „Very Good‟. 6. It is apparent that something happened which necessitated the order dated 3.7.2006 to be issued. Was it that there was no requirement to continue with the services of WP(C) No.1157/2010 Page 3 of 23 Dr.Deepak Kumar or was it something else? Nobody acts without a cause or a reason. 7. The pleadings of the parties show that the reason which led to Dr.Deepak Kumar‟s contractual engagement being terminated prematurely was an incident which took place in Jail No.3 of the Central Jail Tihar and not the reason that there was no work to be performed. 8. The incident was dated 13.2.2006 when Dr.Deepak Kumar was deputed to medically examine a convict named „Kamran‟ who was feeling unwell. The convict was not taken to the jail hospital within the premises of the Central Prison Tihar. Dr.Deepak Kumar was deputed to visit the cell in which Kamran was lodged. 9. As per the pleadings of the parties it is not in dispute that various convicts in Tihar Jail, commensurate with their educational or technical qualifications, are assigned various jobs to be performed by the convicts in Tihar Jail and the convicts who are deputed to render services for the benefit of other convicts and under-trial prisoners are called „Sewadars‟. One Dr.Vipin holding a MBBS degree was lodged in Central Jail Tihar on being convicted for an offence punishable under Section 498-A IPC. It is apparent that the services of the convict Dr.Vipin, as a sewadar, would be best utilized to serve such convicts or under-trials who became sick at the Tihar Jail Prison Complex and thus on the day in question i.e. 13.2.2006, convict Dr.Vipin was placed at the disposal of Dr.Deepak Kumar, to function as a sewadar and assist Dr.Deepak Kumar. 10. Both of them, in their respective capacity as the Jail Visiting Doctor and the Sewadar respectively, reached the cell where Kamran was lodged. Dr.Deepak Kumar examined Kamran but found no apparent manifestation which could be clinically diagnosed as the cause of the stated chest pain WP(C) No.1157/2010 Page 4 of 23 which Kamran complained of being felt by him. As per Dr.Deepak Kumar, he formed an opinion that Kamran could be given a „Voveron‟ injection. Relevant would it be to note that voveron is an analgesic, anti-inflammatory and pain-relieving medicine. 11. Kamran developed fever and complained of extreme pain after he was given the injection of voveron and this he claimed lasted for 2 days. As per Kamran the injection was administered to him in a manner which could be best described by him as the manner in which beasts are injected. He complained to the jail authorities that it was convict Dr.Vipin who administered the injection to him and further did not even take the basic precaution of using a cotton swab while injecting him. Though not expressly stated by Kamran as to what he intended to convey by saying that a cotton swab was not used, commonsense guides us that what Kamran intended to convey was that the place where injection was administered to him was not cleaned with cotton dabbed in spirit, a phenomenon we all are familiar with when an injection is administered. Further, the complaint of Kamran suggests that the needle of the syringe was jabbed inside his muscles and not with the deftness of the fingers as is usually to be observed when an injection is administered to a patient. 12. Kamran‟s complaint was taken seriously on the issue of Dr.Deepak Kumar delegating the function of an injection being administered by a sewadar. 13. To comply with the minimum requirements of natural justice, Dr.Deepak Kumar as also convict Dr.Vipin were called upon to submit, in writing, their explanation pertaining to the incident in question. Dr.Deepak Kumar gave his version, in writing, under his signatures as under:- “To WP(C) No.1157/2010 Page 5 of 23 The Petition Officer Central Jail Tihar Subject: Medical treatment of Kamran S/o Md.Shafi As per telephonic message from petition Officer on 13.2.2006. Respected Sir, It is to inform you that on 13.2.2006, there was a call to attend High Security Ward. I went to attend the call. As per record, the above patient Kamran S/o Md.Shafi presented to me with body-ache and diffuse chest pain with no history of Hypertension, Diabetes or pulmonary tuberculosis. On examination his vitals was within normal limit. For the above complaint he was advised inject voveron 100 im. stat along with other required medicines which was advised by the undersigned and given to him by the undersigned. However, I was being assisted by Vipin (who has been deployed in CJ 30P5 as sewadar of the assistance) in giving medicine. Vipin (sewadar) possess the degree of MBBS as per his C.T Card. It is repeated that the above patient was given the above injection by the undersigned under the proper aseptic condition and by the convict (Vipin). This is for your kind information.” 14. The response of convict Dr.Vipin was as under:- “I, Dr.Vipin Kumar (convict) working as Sewadar in OPD. During the visits to the High Security Ward under the Advise of Doctor I also visit the HSW along them. I carry out instructions like Dressing, injections, under their supervision. I have given Inj. to Mr.Kamran Gohar under the supervisions of Dr.Deepak on 13th Feb 2006.” WP(C) No.1157/2010 Page 6 of 23 15. Juxtaposing the response by Dr.Deepak Kumar and convict Dr.Vipin Kumar, with reference to the complaint of the convict Kamran; as per Dr.Deepak Kumar the sewadar convict Dr.Vipin Kumar made Kamran‟s condition aseptic meaning thereby, the place where the injection was administered was cleaned with spirit dabbed on a cotton swab, and thereafter he i.e. Dr.Deepak Kumar administered the injection. But as per convict Dr.Vipin Kumar, it was he i.e. Dr.Vipin Kumar who administered the injection. Further, it would be relevant to note that as per convict Dr.Vipin Kumar, he had been doing likewise even in the past while working as a sewadar under instructions of the jail doctor. 16. It is thus apparent that with respect to one facet of the complaint made by Kamran the same found corroboration in the written response of convict Dr.Vipin Kumar i.e. it was Dr.Vipin Kumar who administered the injection to Kamran and not Dr.Deepak Kumar. Further relevant would it be to note that on the issue of Dr.Deepak Kumar taking the assistance of convict Dr.Vipin Kumar to make the condition of Kamran aseptic he highlighted that though a sewadar, the medical qualification of Dr.Vipin Kumar had to be kept in mind. 17. Taking a serious view of Dr.Deepak Kumar permitting a sewadar to administer a voveron injection to a convict, the file was processed with a note penned for consideration by the Competent Authority i.e. the Lt.Governor of the Union Territory of Delhi. The note placed for consideration before the Hon‟ble Lt.Governor reads as under:- “Matter in brief is that 2 orders were received in this office from the Prison Headquarters, in which it was ordered that Dr.R.K.Govila, and Dr.Deepak Kumar, both Medical Officers are surrendered and relieved of their duties with the direction to report to the Department of Health & Family Welfare. A letter dated 26.4.06, was written in this regard to DIG WP(C) No.1157/2010 Page 7 of 23 (Prisons) in which the reasons for surrendering these doctors was sought. A letter dated 24.4.06, in this regard was also received from the Prison Headquarters in which it was stated that Dr. R.K.Govila, M.O., while going inside District Jail, Rohini, for his duties, was searched by security personnel, and was found carrying Swagat brand tobacco 03 packets (60 gms.), Rajdarbar Gutka 01 packet (10 gms.) and empty syringe 01 from inside his shoe bottom and the same was seized vide seizure memo No.1185121 dated 5.4.06. It has also been stated that the aforesaid act of Dr.Govila is in contravention of the provisions of Delhi Jail Manual, and instructions issued by the Prison Department from time to time. It has also been stated that Dr.Govila has admitted his guilt and a copy of his confessional statement has also been enclosed with the above said letter. Further in response to this office letter dated 26.4.06, another letter dated 23.5.06, was received in this office in which the above said facts were mentioned in respect of Dr.R.K.Govila. As regards the case of Dr.Deepak Kumar it has been mentioned that while working as Medical Officer in Central Jail No.3, he was giving work of dressing and injection to the convict sewadar in High Security Ward which is against the norms of medical profession and security reasons. In this regard it is submitted that these doctors were appointed by this Department in the year 2000 and 2004 respectively on contract basis, and their contract has been extended from time to time. However from the above said report from the Prison Headquarters it is evident that their conduct has not been up to the mark. Therefore we may if so approved place the matter before Hon‟ble L.G., Delhi, termination of their services. Submitted please. Sd/- (23.6.2006) O.S.(H).” 18. The file shows that the note was thereafter approved by 4 other officers and finally by the Hon‟ble Lt.Governor and pursuant thereto the order dated 3.7.2006 was issued. WP(C) No.1157/2010 Page 8 of 23 19. If true, qua Dr.Govila, the charge is fairly serious, but we need not ponder on the same inasmuch as we are not concerned with the alleged misdemeanor of Dr.Govila. Pertaining to Dr.Deepak Kumar, he questioned his contractual service being terminated alleging that he was penalized and since the order is by way of penalty the safeguard envisaged by the Constitution of India of an inquiry preceding the verdict of guilt being not held, the order dated 3.7.2006 was vitiated in law. 20. He filed a writ petition registered as WP(C) No.11872/2006 in this Court in which he relied upon various decisions of the Supreme Court commencing from the locus classicus reported as 1958 SCR 828 Purushottam Lal Dhingra vs. UOI where even a temporarily appointed government servant was entitled to the constitutional protection afforded by Article 311 of the Constitution of India if the termination order was found to be stigmatic or if the order was innocuous on its face, upon lifting the veil it could be detected that the order was by way of penalty. 21. The learned Single Judge held that this protection would not be available to a contractual appointee and de-hors the same, noting the distinction between an act allegedly committed being treated as a motive or foundation for an action, held that the instant case showed that the misdemeanor of Dr.Deepak Kumar was the motive and not the foundation to terminate the contractual employment. The result was the writ petition being dismissed vide judgment and order dated 13.5.2008. 22. Dr.Deepak Kumar questioned the decision of the learned Single Judge by filing LPA No.352/2008 which was disposed of vide order dated 15.7.2008. The order reads as under:- “Learned counsel appearing for the Appellant seeks WP(C) No.1157/2010 Page 9 of 23 leave to withdraw the appeal with liberty to apply to the learned Single Judge to permit him to withdraw the writ petition on the ground that his remedy lies before the Central Administrative Tribunal. Liberty granted. The appeal is dismissed as withdrawn.” 23. Thereafter, an application was moved before the learned Single Judge, who vide order dated 19.9.2008 recalled his order dated 13.5.2008 and permitted the writ petition to be withdrawn with liberty to approach the Central Administrative Tribunal. 24. Dr.Deepak Kumar thereafter filed OA No.2503/2008 which has been allowed by the Tribunal vide impugned judgment and order dated 8.12.2009. The Tribunal held that in view of a decision dated 27.7.2007 deciding OA No.2663/2006 Des Raj vs. Govt. of NCT of Delhi & Ors., where services of a temporary employee were terminated under Rule 5(1) of CCS (Temporary Service) Rules 1965 and the termination being founded on an alleged misconduct and being punitive was set aside as the termination was not preceded by an inquiry, relief had to be granted to Dr.Deepak Kumar, in respect of whom the Tribunal likewise held that services were terminated by way of penalty and were founded on a misdemeanor. 25. The Tribunal set aside the order dated 3.7.2006 but granted liberty to initiate an inquiry as also to place Dr.Deepak Kumar under suspension and for which it was held that subsistence allowance should be paid. Back-wages were paid limited from 6.11.2008 till Dr.Deepak Kumar was suspended. 26. The instant writ petition challenges the order dated 8.12.2009. 27. At the outset it may be noted that the Tribunal has skirted the basic issue before it, being whether a contractual WP(C) No.1157/2010 Page 10 of 23 employee could claim status at par with that of a temporarily appointed employee. Suffice would it be to state that in Des Raj’s case (supra), the Tribunal was concerned with the termination of an employee who was yet to be confirmed and was working under the status of the temporary employee during the period of training. Des Raj was issued a letter of appointment after he was selected for a regular post and status was that of a temporary employee inasmuch as Des Raj had yet to successfully complete the probation. Unfortunately, the Tribunal glossed over said relevant fact. 28. Sh.P.P.Khurana, learned senior counsel for Dr.Deepak Kumar cited the decision reported as (1979) 1 SCC 477 The Manager, Government Branch Press & Anr. vs. D.B. Belliappa to urge that Dr.Deepak Kumar would be entitled to the benefit of an inquiry and notwithstanding his engagement being on contractual basis, principles enunciated pertaining to temporary employees in government service would apply. 29. We do not agree for the reason, the decision in D.B.Belliappa’s case (supra) shows, vide para 1 thereof, that D.B.Belliappa was appointed temporarily to a non-gazetted Class-IV post as defined in Clause-IV of Sub-Rule (3) of Rule 5 of the Mysore Civil Services (Classification, Control & Appeal) Rules 1957 and the appointment was till further orders. It was for the reason D.B.Belliappa had the status of a temporary civil servant and the statutory rules governed his service that the Supreme Court extended benefit of the Constitutional protection envisaged by Article 311 of the Constitution to him. 30. A Co-ordinate Division Bench of this Court had considered whether protection available to a government servant under Article 311 of the Constitution would be available to a contractual employee. The decision dated 2.11.2010 decides WP(C) 6423/2010 Neena Shad vs. MCD and WP(C) No.1157/2010 Page 11 of 23 a connected writ petition. The law was discussed in paras 50 to 70 of the said decision, which read as under:- “50. Whether MCD was required to hold an inquiry in terms of Article 311(2) of Constitution of India before issuing Office Order(s) dated 03.07.2008 dispensing with the services of the petitioners? 51. Part XIV of Constitution of India deals with “Services under the Union & the States”. Articles 310 and 311 contained under the said part read as under:- “310. Tenure of office of persons serving the Union or a State.—(1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. (2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor , as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.” “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.—(1) No person who is a member of a civil service of the Union or an all- India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. WP(C) No.1157/2010 Page 12 of 23 [(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges [Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply— (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” 52. What is the extent of protection available to the government servants under Article 311? 53. Clause (1) of Article 311 is quite explicit and hardly requires any discussion. The scope and the ambit of clause (1) is that government servants are entitled to the judgment of the authority by which they WP(C) No.1157/2010 Page 13 of 23 were appointed or some authority superior to that authority and that they should not be dismissed or removed by a lesser authority in whose judgment they may not have the same faith. The underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure. Clause (2) protects government servants against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. It is to be noted that in clause (1) the words “dismissed” and “removed” have been used while in clause (2) the words “dismissed” “removed” and “reduced in rank” have been used. 54. What is meant by the expressions “dismissed”, “removed” and “reduced in rank” occurring in Article 311(2)? 55. This aspect of the matter was examined in great detail by Supreme Court in the decision reported as Parshotam Lal Dhingra v Union of India 1958 SCR 828. After tracing the history of service rules, Supreme Court observed as under:- “It follows from the above discussion that both at the date of the commencement of the 1935 Act and of our Constitution the words “dismissed”, “removed” and “reduced in rank”, as used in the service rules, were well understood as signifying or denoting the three major punishments which could be inflicted on government servants. The protection given by the rules to the government servants against dismissal, removal or reduction in rank, which could not be enforced by action, was incorporated in sub-sections (1) and (2) of Section 240 to give them a statutory protection by indicating a procedure which had to be followed before the punishments of dismissal, removal or reduction in rank could be imposed on them and which could be enforced in law. These protections have now been incorporated in Article 311 of our Constitution. The effect of Section 240 of the 1935 Act reproduced in Articles 310 and 311, as explained by this Court in S.A. Venkataraman v. Union of India 25 has been to impose a fetter on the right of the government to inflict the several punishments therein mentioned. Thus under Article 311(1) the punishments of dismissal, or removal WP(C) No.1157/2010 Page 14 of 23 cannot be inflicted by an authority subordinate to that by which the servant was appointed and under Article 311(2) the punishments of dismissal, removal and reduction in rank cannot be meted out to the government servant without giving