Central Administrative Tribunal - Delhi
Smt. Santosh Verma vs Union Of India & Ors. Through on 17 July, 2008
Central Administrative Tribunal Principal Bench OA No.1164/2007 New Delhi this the 17th day of July, 2008. Honble Mr. Shanker Raju, Member (J) Honble Mr. Shailendra Pandey, Member (A) Smt. Santosh Verma, Principal (Retd.), KVS, W/o Col. C.L. Verma, 7-B, Mohini Road, Dehradun. -Applicant (By Advocate Shri M.K. Bhardwaj) -Versus- Union of India & Ors. through: 1. The Secretary, Ministry of Human Resources Development, Sastri Bhawan, New Delhi-110001. 2. The Chairman,KVS Sangathan, Shastri Bhawan, New Delhi-110001. 3. The Commissioner, KVS Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016. -Respondents (By Advocate Shri S. Rajappa) O R D E R Mr. Shanker Raju, Honble Member (J):
A retired Principal of Kendriya Vidyalaya Sangathan (KVS), by virtue of this OA, has impugned order dated 19.12.2006, wherein pursuant to a disciplinary proceedings post retirement penalty of 10% cut in pension for a period of five years has been imposed upon her. Applicant seeks quashing of the enquiry report and the chargesheet with restoration of 100% pension with all consequential benefits.
2. While functioning as a Principal, applicant has been alleged to have filled up admission forms without the knowledge of the parents and remitting fee and also compelling the class teachers to mark the attendance of the children. The enquiry officer (EO) after holding enquiry exparte, held the applicant guilty of the charge, which has been agreed upon by the disciplinary authority and, on approval of the Chairman, KVS, the penalty when imposed, gives rise to the present OA.
3. Though several contentions have been raised by the learned counsel of applicant to assail the impugned order, inter alia appointment of a retired KVS employee as EO, for which the learned counsel has relied upon the decision of the Apex Court in Ravi Malik v. National Film Development Corpn. Ltd. & Ors., (2004) 13 SCC 427 as also the decision of a coordinate Bench of this Tribunal in Sangeeta Ashok v. KVS & Others, (OA No.766/2006) decided on 19.4.2006. The learned counsel has also relied upon a decision of the Allahabad High Court in CWP No.44002/2007 in K.V.S. v. Central Administrative Tribunal, Allahabad Bench, Allahabad & Anr., wherein the issue has been decided in favour of the respondents by holding that a retired government official cannot be appointed as an enquiry officer. When carried to the Apex Court in SLP No.22913/2007 in K.V.S. v. Balvir the decision of the Allahabad High Court was upheld on 15.1.2008.
4. On the other hand, learned counsel of respondents vehemently opposed the contention and while relying upon the decision of the Guwahati High Court in K.V.S. v. Vijay Bhatnagar, WPC No.6795/2005 decided on 13.11.2006 stated that there is no infirmity found in appointment of a retired KVS employee as an enquiry officer.
5. On careful consideration of the rival contentions of the parties, in our considered view, which is inconformity with the doctrine of precedent, as laid down for the Tribunal by the Apex Court in Sub Inspector Rooplal & Ors. v. Lt. Governor through Chief Secretary, Delhi & Ors., 2000 (1) SCC 644 the decision in Sangeeta Ashok (supra) has relied upon the decision of the Apex Court to lay down a ratio decidendi that a retired KVS employee cannot be appointed as an EO. The aforesaid plea was also upheld by the High Court of Judicature at Allahabad, which has attained finality on rejection by a reasoned order by the Apex Court. Accordingly, the decision cited of Guwahati High Court (supra) having not taken into consideration the decision in Ravi Malik (supra) of the Apex Court is not only per incuriam but also in the matter of choosing precedent it is trite that it is open for a Bench to which decision of the High Court under whose jurisdiction the Bench is not functioning, if cited, to pick up at its prerogative and as the decision of the Allahabad High Court has relied upon the decision of the Apex Court, we rely upon the same to hold that a retired KVS employee cannot be appointed as an enquiry officer. As such, the appointment of EO when he is without jurisdiction rest of the proceedings followed is also nullity in law, which vitiates the order of penalty as well.
6. The other legal grounds raised by applicants are not adjudicated.
7. Resultantly, OA is allowed. Impugned order is set aside. Respondents are directed to restore back the deducted pension of applicant to the extent of 100%, within a period of two months from the date of receipt of a copy of this order. No costs.
(Shailendra Pandey) (Shanker Raju) Member (A) Member (J) San.