Central Administrative Tribunal - Hyderabad
Smt. L.D. Sharada vs Union Of India Another Reported In Air ... on 28 November, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH : AT HYDERABAD OA No.578 of 2008 Date of Order : 28 -11 -2008.
Between:
Smt. L.D. Sharada, W/o. B. Suresh, aged 46 years, Occ: Trained Graduate Teacher, O/o. Kendriya Vidyalaya, C.R.P.F, Barkas, Hyderabad ( Under the orders of transfer to Kendriya Vidyalaya, O.F. Dehu Road, Maharashtra) R/o. H.No. 10-1-693, J.B.R. Enclave, West Maredpally, Secunderabad. ........Applicant And
1. The Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi- 110 602;
2. Sri M.M. Joshi, The Deputy Commissioner ( Academics), Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi- 110 602;
3. The Deputy Commissioner ( Academics), Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi- 110 602;
4. The Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, Picket, Secunderabad- 500 009;
5. The Educational Officer, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi- 110 602;
6. The Education Officer ( Concerning to CRPF, Barkas), Kendriya Vidyalaya Sangathan, Regional Office, Picket, Secunderabad- 500 009. ....Respondents Counsel for the Applicant : Mr. K.R.K.V. Prasad Counsel for the Respondents : Mr. B.N. Sarma, SC for KVS.
CORAM:
THE HON'BLE MR.JUSTICE P. LAKSHMANA REDDY,VICE-CHAIRMAN THE HON'BLE MR.R. SANTHANAM : MEMBER (ADMN) (Order per Hon'ble Mr. R. Santhanam, Member (A) )
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The applicant in this O.A. has challenged the following orders of the respondents:-
"i) Order issued from file No. F.14-Gen ( Res.)/2008-KVS (hr)/7695, dated 08.09.2008 by 6th Respondent in imposing minor penalty of withholding her next increment for a period of two years without cumulative effect;
ii) Transfer order issued from file No. F.11029/02/KVS(HQ)/(Estt.II), dated 08.09.2008 by the 5th Respondent;
iii) Relieving order issued from file No. F/1-LDS9TGT)-2008/KV(CRPF)1145-51, dated 10.09.2008 and
iv) Para 8(iv) of the New Transfer Guidelines that came into effect from 14.3.2006 containing amendments till 15.11.2007."
2. The facts of the case sans unnecessary details are as follows:-
The applicant joined the Kendriya Vidyalaya Sangathan ( KVS) as a Trained Graduate Teacher for Social Studies subject on 18.09.1993. She has been working in K.V. , C.R.P.F., Barkas at Hyderabad with effect from 11.09.1995. The applicant claims that she has unblemished service of record and that in the current academic year, her performance index was 63.88 as against the qualitative benchmark of 60% prescribed by the Sangathan. It is the applicant's case that she attended the in-house meeting called for by the Principal for the teachers of X & XII class working in KVS, CRPF, Barkas on 20.08.2008 at 02.30pm in the school premises. The meeting was Chaired by Sri M.M. Joshi, Deputy Commissioner ( Academics), the 2nd Respondent herein, who had come from Delhi to have this meeting with the subject teachers for a discussion with regard to the poor performance of the students. The applicant made submissions during the meeting with a good intention to enable the authorities to make a realistic assessment of the situation and which would help in evolving proper guidelines to the teaching staff for achieving better performance of the students. The applicant was shocked to receive a Memorandum dated 21.08.2008 proposing action against her under Rule 16 of CCS ( CCA) Rules, 1965 enclosing a statement of imputations inter-alia indicating that the applicant used intemperate language and shown immodest behaviour during the meeting and thereby behaved in a manner unbecoming of an employee of the Sangathan violating Article 59(34)(a)(iii) and Article (22) of Education Code from the 6th Respondent. The applicant vide her representation dated 1.09.2008 addressed to the 6th Respondent denied the above allegation. Her explanation was not accepted and on 10.09.2008 she was handed the impugned penalty order dated 08.09.2008, the impugned transfer order dated 08.09.2008 and the impugned relieving order dated 10.09.2008. The applicant submitted an appeal to the 4th Respondent against the impugned order dated 08.09.2008 imposing penalty of withholding of increment for a period of two years without cumulative effect and a representation dated 13.09.2008 to the 1st Respondent on the impugned transfer from KV, CRPF, Barkas to KV, OF, Dehu Road. Since she has no other effective alternative remedy, she has approached this Tribunal challenging the orders on the following grounds:-
(i) Transfer of the applicant on the basis of the report by the 2nd respondent which resulted in issuance of Charge memorandum and imposition of minor penalty and further penalty of transfer are in violation of principles of natural justice and in violation of Articles 14,16 & 21 of the Constitution;
(ii) The 2nd Respondent with pre-meditated mind of transferring the applicant submitted a false report culminating in imposition of minor penalty and transfer.
(iii) The action of the respondents in divesting the jurisdiction of the 4th respondent who alone is competent to invoke para 8 (iv) of the Transfer Guidelines for transferring the applicant outside Hyderabad Region is in violation of Principles of natural justice.
(iv) The transfer in addition to imposition of minor penalty suffers from the vice of unreasonableness and the provision at para 8 (iv) of the transfer guide-lines is unconstitutional.
(v) The action of the respondents in transferring the applicant is in violation of the provision at Para 12 (iv) which enunciates posting of Sangathan employee along with spouse.
3. The respondents have filed the reply statement contesting the claims of the applicant. According to them, the Dy. Commissioner, the 3rd Respondent herein, visited the school on 20.08.2008 to have a meeting with the subject teachers in regard to the poor performance of the students. The 3rd Respondent along with other two Principals of the K.V., attended the meeting. The applicant along with other teachers also attended the meeting. However, at the meeting, a few teachers including the applicant did not allow the meeting to go on and to discuss remedial measures to be taken to improve the result and, as such, the meeting ended abruptly. The 3rd Respondent submitted a report identifying the teachers who disrupted the said meeting. This report is at Annexure-R1. The Principals of two other K.V.s, who attended the meeting also submitted a separate report describing the incident in the school on that date. This report is at Annexure-RII. As the conduct of the applicant in the said meeting convened for the betterment of the school and the children, violated Article 59(34)(a)(iii) and Article 22 of the education code for the teachers of the KVS memorandum dated 21.08.2008, a charge memo was issued to the applicant by the 6th Respondent under Rule 16 of the CCS ( CCA) Rules, 1965 with the statement of imputation describing her conduct during the said meeting . The applicant submitted representation on 1.09.2008 against the said memorandum and the disciplinary authority after considering the same imposed on her the punishment of withholding her next increment for a period of two years without cumulative effect by proceedings dated 08.09.2008. The respondents have also submitted that by another proceeding dated 08.09.2008, the competent authority ordered transfer of the applicant from the KV, CRPF , Barkas to KV Ordnance Factory, Dehu Road on administrative grounds with immediate effect under para 8 (iv) of the transfer guidelines applicable to KVS employees. The applicant was relieved by order dated 10.09.2008 to report to the transferred place. The respondents have maintained that the transfer of the applicant was ordered by the competent authority as per the guidelines issued by the department in regard to administrative transfers. One of the grounds for such transfer is misconduct or unsatisfactory performance as evidenced by issue of charge sheet under rule 14 of the CCS ( CCA) Rules, 1965 or imposition of a minor penalty under Rule 16 of the CCS ( CCA) Rules, 1965. Therefore, this transfer on administrative grounds is within the framework of guidelines and the same is legal and valid.
4. The applicant has filed a rejoinder stating that she is not aware as to what the provisions of Article 59(34)(a)(iii) and Article 22 of the Education Code are. The disciplinary authority who imposed the impugned penalty without conducting any inquiry is lower in rank to the 2nd/3rd Respondent, who reported about the alleged conduct of the applicant, based on which the impugned transfer was issued. The applicant has further stated that the transfer was not on administrative grounds but it was only on account of the penalty imposed on the applicant. The applicant has also referred to the deliberations of the meeting which was prepared by the Teachers who participated in the meeting and has alleged that the reports given by the 2nd /3rd Respondent and other Principals was stage managed to prepare a ground for the impugned transfer. The applicant further claims that the authorities ought to have viewed the participation of the applicant in the right spirit as the discussion was to improve the performance of the Institute.
5. Heard Sri. K.R.K.V. Prasad, learned counsel for the applicant and Sri M.C. Jacob, learned counsel representing Mr. B.N.Sarma, learned standing counsel for the respondents. The judgments cited by the counsel on both sides were also perused.
6. The issues that arise for consideration in this case are
(i) Whether the minor penalty imposed on the applicant is legal & valid;
(ii) Whether the transfer of the applicant to K.V., Ordnance Factory, Dehu Road on administrative grounds is legal and not arbitrary;
(iii) Whether Para-8(iv) of the Transfer guidelines which came into force on 14.3.2008 is valid in law; and
(iv) to what relief if any, is the applicant entitled to ?
7. Issue No. 1:-
The statement of imputation of misconduct or mis-behaviour in support of the Articles of charge framed against the applicant is based on the report of the two Principals, who attended the meeting on 20.08.2008 (Annexure -RI) and the report submitted by the 3rd Respondent, which is at Annexure-R-II. It is seen from these two reports that during the meeting, the applicant stated that Primary Teachers were ignorant of the grading system followed in KVS and were awarding grades without proper assessment. She is reported to have further alleged that students were getting promoted every year in the primary classes based on improper grading and reach class VI without knowing the letter of the alphabet. She was also reported to have said that grading system was defective. When the Respondent No.3 explained that the grading system does not prevent the teachers from performing their duties effectively, the applicant is reported to have retorted in Hindi "dhavayiye math" meaning "don't suppress" . She is reported to have further remarked that the "teachers are not responsible for the performance of the students. It is the students and parents who are responsible for the poor performance. KVS is unnecessarily pressurizing the teachers for giving performance of students in the Board Examination." It has been alleged by the respondents that "the intemperate language used and immodest behavior shown by the applicant " is unbecoming of an employee of the Sangathan.
8. The learned counsel for the applicant submitted that the applicant's performance has been excellent. She produced 100% results from 2005 to 2008 academic years for Class X. Since the meeting was convened to assist the performance of the students in Classes X & XII, the applicant on the assumption that there would be constructive interaction between the teachers and the management with a view to improving the performance of the Institution, expressed her views as any normal and sincere teacher would. He added that all the teachers, who spoke at the meeting have been transferred and disciplinary action has been taken against them. This amounts to curtailment of personal liberty and freedom of expression. He cited the following observations of the then Chief Justice of India, Mr. Justice M.H. Beg in the case of Smt. Maneka Gandhi Vs. Union of India another reported in AIR 1978 SCC 597(1) "37. It appears to me that even executive authorities when taking administrative action which involves any deprivations of or restrictions on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness or unreasonableness or unfairness. They have to act in a manner in which is patently impartial and meets the requirements of natural justice."
9. The learned counsel also submitted that no enquiry has been conducted even though the applicant denied the charge and punishment of stoppage of increment for two years without cumulative effect has been imposed for this alleged misconduct. He claimed that imposition of such punishment without enquiry is illegal and arbitrary. Referring to the judgment of the Hon'ble High Court of Andhra Pradesh in S. Seetha Ramaiah Naidu Vs. Ongole Co-operative Bank Ltd and another reported in AIR 1974, Andhra Pradesh at page 49, wherein it was observed that "meeting means coming together of persons for the purpose of discussion by due consultation", the learned counsel submitted that the applicant expressed her views during the interactive session on academic issues. Her submissions were not taken in right spirit defeating the very purpose of the meeting.
10. The learned counsel for the respondents submitted that the conduct of the applicant in not allowing the officials to do their designated duty criticizing the grading system, throwing the blame of poor performance on the parents etc were not appreciated and because of the disruptive behavior of the applicant and few others, the purpose for which the meeting was called, could not be achieved and the meeting had to be ended up abruptly.
11. We have examined the arguments put forth by both the counsel very carefully. It is not disputed that the applicant has not admitted the charges made against her. In her explanation dated 1.09.2008 submitted to the disciplinary authority, she has denied the charges. The law is well settled that when a charged employee denies the charge, even if it is under minor penalty procedure, the proper course for the authorities would be to conduct an enquiry before coming to a conclusion. On this ground alone, the penalty imposed on the applicant deserves to be set aside. We cannot also over look the fact that the disciplinary authority is under the control of Respondent No.3, who gave a report against some teachers including the applicant. One cannot expect a subordinate official to go against his Superior officer, who is almost the complainant in this case. The principles of natural justice require that the enquiry officer should be independent and impartial. On these two grounds, we hold that the enquiry has not been conducted properly and, consequently, the punishment also deserves to be set aside. Therefore, the issue No.1 is decided in favour of the applicant.
12. Issue No.2:-
The applicant has been transferred on administrative grounds and the transfer order specifically refers to para-8(iv) of the transfer guidelines. According to these guidelines, staff of KVS can be transferred on administrative grounds which may include grounds of misconduct or unsatisfactory performance as evidenced by issue of charge sheet under Rule 14 of the CCS ( CCA) Rules, 1965 or imposition of minor penalty under Rule-16 of CCS (CCA) Rules 1965. Since the applicant has been imposed a minor penalty, these guidelines have been used to transfer her out of Hyderabad Region.
13. The learned counsel for the respondents submitted that every organisation has its own transfer policy and its own guidelines. KVS also has a policy which has helped it in maintaining discipline and establishing a name all over the country. He referred to several judgments of the Hon'ble Apex Court in upholding the right of the employer to transfer an employee on administrative grounds or in public interest. In the case of Union of India V. S.L. Abbas (1993) 4 SCC page 357, the Hon'ble Supreme Court has held that "an order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the court cannot interfere with it.".
In Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Pandey and Ors. reported in 2005 (1) ATJ 665, the Hon'ble Supreme Court has observed as follows:-
"4. Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or visited by malafide or infraction of any prescribed norms of principles governing the transfer( see Ambani Kanta Ray V. State of Orissa, 1995 ( Suppl) 4 SCC 169). Unless the order of transfer is visited by malafide or is made in violation of operative guidelines, the Court cannot interefere with it. ( See Union of India vs. S.L. Abbas, AIR 1993 SC 2444): who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by malafide or is made in violation of operative any guidelines or rules the courts should not ordinarily interfere with it."
Similar observations have been made in Union of India & Ors. V. Janardan Debanath & Anr., (2004) 4 SCC 245. The State of Punjab V. Joginder Singh Dhatt reported in AIR 1993 SC 2486. Mohd. Masood Ahmad Vs. State of U.P. & Ors. reported in (2007) 8 SCC page 150. P. Shaikshavali Vs. Superintendent of Police, Ananthapur and others reported in 2001(2) ALT 582 ( D.B.) etc.
14. However, the learned counsel for the applicant referred to the judgment of the Kerala High Court in the case P. Pushpakaran Vs. Chairman, Coir Board, Cochin reported in 1979 (1) SLR 309 Kerala in which the Hon'ble High Court had held that if the dominant motive of the employer was to punish the petitioner, the transfer is bad and that it is open to the court to consider whether the transfer order is vitiated either by malafides or by non-compliance of the principles of natural justice. The learned counsel argued that the minor penalty imposed without conducting any enquiry is the basis for the transfer. The purported reports given by the Dy. Commissioner and the other two Principals were also not referred to in the statement of imputations even though the respondents claim that these reports were the basis for the action initiated against the applicant. The applicant's status as a teacher does not mean that she will be reduced to that of a non- person vulnerable to any action and that she should control the locomotion of the thought pattern without expressing her views even though the main purpose of the meeting was expression of views based on experience. He argued that there has been violation of principles of natural justice in this case. The learned counsel also referred to the case of Dr. M. Hari Vs. Union of India & Ors reported in 2007 (2) SLJ page 145 (CAT) wherein the Tribunal had held that when the transfer is arbitrary, the courts may interefere. A reference has been made in this case to the judgment of the Hon'ble Supreme Court in the case of C. Ramanathan V. Acting Zonal Manager, Food Corporation of India, Madras and Ors. 1980 LLJ ( Vol.I) Page.1 wherein their lordships held as follows:-
"Courts are chary to interfere with in order of transfer made for administrative reasons. An innocuous order of transfer, which not only on the face of it appears to be one made in order to further the administrative interest of an organisation, but which even on a deeper scrutiny does not pose any irregular or malafide exercise of power by the concerned authority, is generally upheld by Civil Courts, as Courts cannot substitute their own opinion and interefere with ordinary orders of transfer of employees of established organisations. But, if in a given case, an order of transfer appears to be deliberate attempt to by pass all disciplinary machinery and offend the well known principle of audi alteram partem if ex facie it is clear that the order of transfer was not made for administrative reason but was made to achieve collateral purpose, then it is open to the Court to crack the shell of innocuousness which wraps the order of transfer and by piercing such a veil, find out the rival purpose behind the order of transfer. No doubt, a normal order of transfer can, be misunderstood as a punitive measure. But, if the circumstances surrounding such an order leads to a reasonable inference by a well instructed mind, that such an order was made in the colourable exercise of power and intended to achieve a sinister purpose and based on irrelevant considerations, then the arm of the Court can be extended so as to decipher the intendment of the order and set it aside on the ground that it is one made with a design and motive or circumventing disciplinary action and, particularly when civil servant is involved, to aviod the stringent but mandatory procedure prescribed in Art. 311 (2) of the Constitution of India."
15. We find from the facts of the case before us that the Dy. Commissioner, the 3rd Respondent, who Chaired the meeting was upset at some of the observations made by the Teachers which was critical of the system in K.V.S.. Instead of explaining the policies pursued by K.V.S. and convincing them and motivating them to perform better, he seems to have taken the criticism personally and made a report against the teachers who spoke at the meeting. As a responsible and senior official who came all the way from Delhi to learn what was going on in the school, he should have taken control of the meeting and steered the deliberations on the right track. Instead he chose the easy way of walking out of the meeting and blaming the teachers for all the ills. We are of the considered view that in the given context, the whole action of the respondents in initiating the disciplinary proceedings under minor penalty procedure, imposing punishment without enquiry and further transferring the employees to far off places is nothing but colourable exercise of power and punitive and arbitrary in nature.
16. We therefore come to a conclusion that the transfer of the applicant has been made on malafide grounds and is therefore illegal and arbitrary. Therefore, this point is also decided in favour of the applicant.
17. Issue No.III:
The learned counsel for the applicant referred to para -1.3 (ii) of the Transfer Policy which states that one of the objectives of the transfer policy is to maximize the overall satisfaction level of its employees, subject always to the paramount need to protect academic interests of students and administrative efficiency of the organisation.. According to him, the provisions incorporated at para - 8 (iv) which permits transfer on administrative grounds of employees who are issued charge sheet under Rule 14 of the CCS ( CCA) Rules or who have received minor penalty under Rule -16 of the CCS ( CCA) Rules is directly in conflict with the objective, vitiating the said objective. Transfer as a measure of punishment is against law of the land and, such transfer has a de-moralising the effect on the employee. Hence, this provision is unconstitutional and against the law settled in the matter.
18. The respondents counsel on the other hand have justified the guidelines on the ground that K.V.S Educational Institutions are prestigious institutions, their performance is consistent and is constantly monitored in larger public interest and to safeguard the interest of the student community, administrative transfer guidelines have been incorporated. As those provisions are to improve the system, they cannot be held as unjust. They have already stated that the transfer of the applicant was not violative of guidelines as it was done by the competent authority. In regard to the contention that the satisfaction of the employees should also be a concern of the administration, the learned counsel for the respondents submitted that the administration extended all facilities to the Teachers as per the rules and no compliant was received. The learned counsel argued that there is an internal grievance redressal mechanism which takes care of the problems of the teachers.
19. Having heard, the rival contentions, we are unable to agree with the learned counsel for the applicant that the provisions incorporated in para -8 (iv) of the transfer guidelines are unconstitutional. Being an educational institution, highest standards of discipline have to be maintained and it would not be in the interests of the teachers themselves, if they remain in the schools after receiving punishment or for after receiving a major penalty charge sheet. We do not find anything unconstitutional in departments having their guidelines for transfer the employees. At the same time, the employers should also take into account the guidelines in para -1.3 (ii) i.e. maximizing the overall satisfaction of the employees and even when it becomes necessary to transfer employees on administrative grounds, transfer to far off places should be avoided to the extent possible. When representation is made by the affected teacher, it is incumbent on the authorities to show their humanitarian character and accommodate them as far as possible in the nearby places considering the family circumstances. Since we do not agree that the transfer guidelines per se are unconstitutional, this issue is decided against the applicant.
20. Issue No.4:-
Since the order imposing the penalty on the applicant has been set aside and transfer order dated 08.09.2008 has also been held to be illegal and arbitrary, the applicant is entitled to continue in KVS, CRPF, Barkas, Hyderabad. The respondents are however at liberty to transfer her in the normal course at the end of the academic year if they think that it is necessary.
21. In the result the O.A. is allowed on the following lines:-
(i) The order issued from file No.F.14- Gen.( Res)/2008-KVS(HR)/7695 dated 08.09.2008 by the 6th Respondent imposing the penalty of stoppage of increment of the applicant is quashed and set aside;
ii) Transfer order issued from file No. F.11029/02/KVS(HQ)( Estt.II), dated 08.09.2008 by the 5th Respondent is also quashed and set aside;
iii) consequently, the relieving order issued from the file No. F/1-lds9tgt)-2008/KV 9CRPF)1145-51dated 10.09.2008 is also quashed and set aside. However, there shall be no order as to costs.
(R.SANTHANAM) (P. LAKSHMANA REDDY) Member (A) VICE- CHAIRMAN