Central Administrative Tribunal - Delhi
Shri M.P. Bansal vs Kendriya Vidyalaya Sangathan And Anr. on 3 January, 2003
Equivalent citations: 2004(1)SLJ311(CAT)
ORDER
Lakshmi Swaminathan, J. (Vice Chairman)
1. The applicant is aggrieved by the committee's order dated 4.5.1998 passed by the respondents whereby the respondents have imposed on the applicant the penalty of 10% cut in pension for a period of three years. He has also prayed for quashing the order dated 19.4.1999 regarding recovery from stagnation increments with a direction to the respondents to calculate his full amount of pension, gratuity and other pensionary benefits without giving effect to the impugned order dated 4.5.1998. He has also prayed for interest at 18% per annum to be paid to him from the date of his retirement i.e. 30.11.1992 till the date of actual payment.
2. The brief relevant facts of the case are that the applicant, who retired from service with the respondent-Kendriya Vidyalaya Sangathan (KVS)-as Principal on 30.11.1992, was posted on deputation as Director of Education, Lakshadweep Administration during the years 1986-88. During that period, according to the respondents, there was a complaint against him by the Central Bureau of Investigation (CBI) that he had committed gross misconduct and that he was responsible for purchasing furniture for schools and colleges for Lakshadweep Administration on higher rates, due to which a loss has been caused to the administration to the tune of Rs. 1,42,000. The respondents have also stated that there was a loss of further amount of Rs. 20,000 on account of transportation charges. He was charge-sheeted on 6.8.1991 for the above alleged misconduct. The applicant had denied the charges and later on, on the advice of the Chief Vigilance Commissioner (CVC), Departmental inquiry cum CVC was appointed as an Inquiry Officer. The penalty orders have been issued by the respondents on the basis of the charges levelled against him being found proved in the inquiry proceedings in which he had been imposed the penalty of 10% cut in pension for a period of three years vide order dated 4.5.1998. The appeal preferred by the applicant against the order was rejected because no appeal lies against the order of the Chairman, KVS in terms of Rule 22(i) of the CCS (CCA) Rules, 1965, as the orders had been issued by the Chairman, KVS and Hon'ble Minister of Human Resource Development (HRD).
3. Mr. B.K. Raina, learned Counsel for the applicant has been heard at length and Mr. S. Rajappa, learned Counsel for the respondents. Both learned Counsel have also filed their written statements which have been taken on record and the same has also been submitted to other party.
4. Learned Counsel for the applicant has contended that the charge-sheet which was issued to the applicant vide Memorandum dated 6.8.1991 related to incidents which have occurred while the applicant was posted as Director of Education, Lakshadweep Administration during the period from 1986-88. He has submitted that the charge-sheet is delayed and therefore, the same is not maintainable. This plea is rejected because at the time when the charge-sheet was issued, the applicant was still in service and taking into account the relevant facts and circumstances of the case, the penalty orders cannot be quashed only on this ground of delay and latches. It is relevant to mention that the applicant had also participated in the inquiry proceedings by giving his reply dated 30.8.1991 and according to the applicant, no inquiry was held for 23 months and the inquiry was not concluded till 1996. However, it is noticed that Hon'ble Delhi High Court vide its order dated 9.4.1996 had directed the respondents to conclude the inquiry within three months. The Hon'ble High Court has also directed the respondents to pay Rs. 50,000 to the applicant which shall be adjusted later on while paying other retiral dues to him subject to his entitlement according to the rules. Respondents have staled that in accordance with the Hon'ble High Court's order, the inquiry was completed vide report dated 26.6.1996 by Commissioner of departmental proceedings, (CVC) and the same was placed before the Hon'ble High Court. Hence, Mr. S. Rajappa, learned Counsel for the respondents has contended that the inquiry cannot be held to have been delayed as the same was held after the applicant himself had agreed before the Hon'ble High Court that he would cooperate in the inquiry. Therefore, on this ground also, the departmental inquiry initiated against the applicant cannot be quashed on the ground of delay and latches and the applicant's plea is accordingly rejected.
5. Learned Counsel for the applicant has contended that the Inquiry Officer's report is not in accordance with Sub-rules 18 and 23 of Rule 14 of the CCS (CCA) Rules, 1965. He has also contended that the report is vague. He has alleged that certain relevant documents were not given to him in spite of repeated requests and the departmental proceedings are malafide, as according to him, the respondents have to initially ascertain, the actual position from Lakshadweep Administration. The applicant's Counsel has submitted that in fact the applicant had rendered excellent service with the administration, and that he had actually got his services to continue on deputation for further period of two years after his deputation term expired in 1988. He has also contended that there is violation of principles of natural justice and, therefore, both the inquiry report and disciplinary proceedings cannot be sustained in law. He has referred to the proceedings dated 18.6.1996 and submitted that the presenting officer clearly recorded that he was unable to produce the documents as asked for by the applicant but the inquiry report was silent on this aspect. Learned Counsel for the applicant has submitted that non-production of documents has, therefore, vitiated the inquiry proceedings which are liable to be quashed and set aside. With regard to his contention of non-production of documents, learned Counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in the case of State of Tamil Nadu v. Thiru K.V. Perumal and Ors., JT 1996(6) SC 604=1996(3) SLJ 43 (SC). He has further submitted that the Inquiry Officer's report has not discussed the evidence and given reasons of findings in the charges. He has contended that the inquiry report was given only on the basis of surmises and conjectures and has no findings on record calling the charges as proved. The other ground taken by the learned Counsel for the applicant is that Rule 9(2) of CCS (Pension) Rules, 1972 has been violated as the Presidential approval has not been obtained for continuing with the inquiry after the applicant retired from service. He has contended that the sanction of the President was mandatory. He has also submitted that the inquiry orders have to be issued in the name of the President and has contended that the impugned order dated 4.5.1998 is not in accordance with the Provisions of Rule 9(2) of CCS (Pension) Rules, 1972. Learned Counsel has also contended that there is nothing on record that the applicant has directly dealt with costs in the purchase file. There is no order posting the clerks and office superintendent who were properly acquainted with the rules and procedures relating to purchases. He has further submitted that other than conjectures and surmises there is no evidence. According to him, similar is the case regarding transportation charges, malafidely linked in the inquiry report. He has submitted that Inquiry Officer has given his report without application of mind in a great hurry who has also not taken into account the applicant's written submission dated 21.6.1996.
6. Learned Counsel for the applicant has submitted that there is no lawful reason or justification to withdraw the stagnation increments which is malafide. According to him, the applicant had reached the maximum of the pay scale of Rs. 4500 (pre-revised scale) in January, 1988 and he has been granted first stagnation increment in January, 1990 and second increment in January, 1992 so that his basic pay reached Rs. 4,750 from January, 1992. He has submitted that the impugned order dated 19.4.1999 is non-speaking order and has contended that the applicant is, therefore, entitled to be returned the stagnation increments irrespective of the departmental inquiry initiated against him. In the circumstances, he has prayed that the impugned orders may be quashed and set aside and the applicant be granted full pension as well as gratuity and other retiral benefits from the date of his retirement.
7. We have seen the reply filed by the respondents as well as the written statements and heard Mr. S. Rajappa, learned Counsel for the respondents. As mentioned above, in view of the Hon'ble Delhi High Court's order, the plea taken on behalf of the applicant that the penalty order dated 4.5.1998 may be quashed and set aside on the ground of delay and latches cannot be accepted and is accordingly rejected.
8. The respondents have submitted that the inquiry report was given by the Commissioner, Departmental inquiry, which was in accordance with the Resolution of the Ministry of Home Affairs dated 11.2.1964 and the Hon'ble High Court's order dated 9.4.1996 which had also directed them to conclude the inquiry proceedings as early as possible and in any case, within three months from that date. They have submitted that the inquiry report dated 26.6.1996 was placed before the Hon'ble High Court by the Commissioner, Departmental inquiry, CVC. They have contended that there is neither any illegality nor irregularity in the report nor the same is in violation of the principles of natural justice. Learned Counsel for respondents has submitted that even though the charge was issued vide Memorandum dated 6.8.1991, the applicant did not submit his defence statement till July 1992, even after several reminders and was adopting dilatory tactics. They have also submitted that although the allegations in the charge memo pertain to the period 1986-88, they had received the report from CBI only in 1991. Thereafter the applicant himself had approached the High Court, after which the Inquiry Officer had to stop his proceedings till the decision was taken by the Hon'ble High Court.
9. Regarding the conduct of the inquiry, the respondents have stated that the same was done in Cochin as relevant documents and witnesses were available there. Regarding non-supply of additional documents, they have submitted that the said papers relating to the case were with the Lakshadweep Administration and they had acknowledged that the said papers were not traceable. The respondents have contended that disciplinary proceedings initiated while the official in the service, as in the present case, are admittedly under the provisions of Rule 9 of the CCS (Pension) Rules, 1972 even after his retirement and can be continued and concluded under the provision of this Rule. The Inquiry Officer in his report has concluded that the articles of charges are substantially proved. They have submitted that accordingly the Disciplinary Authority i.e. the Chairman, KVS imposed the penalty of 10% cut in his pension. They have also contended that as CVC was appointed by the President, it was not necessary to consult the UPSC and procedure as laid down in the Resolution of the Ministry of Home Affairs has been strictly followed while imposing the penalty on the applicant. They have also clarified that the Chairman, KVS, the Director of the Sangathan of the Board, as the case may be, is the Minister of State or Deputy Minister of the Ministry of Human Resource Development, Department of Education in respect of the KVS. In this case, they have explained that the Minister who is now the Chairman of KVS is the Competent Authority to impose the penalty upon the retired officer of KVS. According to them, the order dated 4.5.1998 conveying the order of the President in imposing the penalty upon the applicant, is in accordance with the terms of the Govt. of India's instructions-Ministry of Finance O.M. dated 16.9.1961. Therefore, the ground taken by the applicant that it is only the President who can convey his decision in imposing the penalty is not tenable. We agree with this, namely, that any officer so authorised can convey the decision of the Competent Authority, provided the decision has been taken by the Competent Authority which in this case is the President/Chairman, KVS. For these reasons, the respondents have contended that there is nothing wrong with the impugned penalty order dated 4.5.1998. Learned Counsel has, therefore, prayed that TA may be dismissed.
10. With regard to the recovery of the stagnation increments, respondents have submitted that the authority has inadvertently ignored the Govt. of India's instruction No. 15 below FR 26. They have further referred to the amendment in the rules dated 10.8.1993 whereby the element of a disciplinary case pending against an employee has been delinked from the date of issue of those instructions. However, as the applicant had retired on 30.11.1992, as such these instructions were not applicable to him. It is, however, pertinent to mention that in Para 11 of the counter affidavit filed by the respondents on 28.2.2000, a reference has been made to Annexure R-1, which is not annexed.
11. We have carefully considered the pleadings and the submissions made by the learned Counsel for the parties including the written submissions.
12. The respondents have submitted in their counter affidavit dated 3.6.2002 that the Chairman, KVS has validly passed the penalty order in exercise of the powers conferred under the CCS (Pension) Rules as adopted by the KVS. They have also submitted that the Chairman, KVS is the Disciplinary Authority in case of a retired KVS employee who has passed the penalty order dated 4.5.1998 in this case. They have also submitted in the written submissions that CVC had held the inquiry into the alleged misconduct of the applicant which were held proved and had advised the imposition of penalty to the Disciplinary Authority. They have further submitted that "Since CVC was appointed by the President, the opinion of an august body like CVC carried weight with the Disciplinary Authority in reaching a final conclusion. It is therefore not necessary for the Disciplinary Authority to consult UPSC inasmuch as pointed out above, the CVC in exercise of its powers and functions, it will not be subordinate to any Ministry/Department and will have the same measure of independence and autonomy as the UPSC." They have referred to the Ministry of Home Affair's Resolution dated 11.2.1964. This Resolution deals with the recommendations made by the Committee on prevention of Corruption and the decision of the Govt. to set up a Central Vigilance Committee (CVC) which will be headed by the Central Vigilance Commissioner. The powers and functions of the CVC are enumerated in the subsequent paragraphs. This Resolution has nowhere referred to the provisions of the CCS (CCA) Rules nor superseded the Rules nor can it be done in the manner contended by the respondents with regard to the procedure laid down in those Rules, including consultation with the UPSC. In the present case, although the Departmental proceedings had been initiated against the applicant before he had retired from service in 1992, the same had been continued under the provision of Rule 9 of the CCS (Pension) Rules, 1972. Under Rule 9(1) of the Pension Rules, the President is empowered to withhold or withdraw the pension or gratuity or both either in full or in part and of ordering recovery of any pecuniary loss to the Govt., if in any Departmental proceedings, the pensioner is found guilty of grave misconduct of negligence during the period of service. The proviso to Rule 9(1) of Pension Rules provides that the Union Public Service Commission (UPSC) shall be consulted before any final orders are passed by the President. The contention of the respondents that because the Commissioner of departmental inquiry, CVC, had been appointed in this case for conducting the disciplinary proceedings, there was no need for the Competent Authority i.e. the Chairman, KVS/President to consult the UPSC in this case cannot, therefore, be accepted. The further contention of the respondents is that as the CVC is not subordinate to any Ministry/Department and it has the same measure of independence and autonomy as the UPSC will not assist them to override and act contrary to the statutory provisions contained in Rule 9 of the Pension Rules, 1972 and Rule 14 of the CCS (CCA) Rules, 1965. The Resolution of the Ministry of Home Affairs dated 11.2.1964 by which the Govt. of India had decided to set up the CVC cannot also supersede the statutory Rules. Therefore on this ground alone the impugned order passed by the Chairman, KVS dated 4.5.1998 without consulting the UPSC cannot be sustained in law and has to be quashed and set aside.
13. We have also seen the Inquiry Officer's report dated 26.6.1996. We find merit in the submissions made by the learned Counsel for the applicant that Sub-rule (18) of Rule 14 of the CCS (CCA) Rules, 1965, has not been complied with by the Inquiry Officer. He has not generally questioned the applicant on the evidence lead before him in the departmental proceedings so as to enable him to explain the Circumstances. However, with regard to his further contention that Sub-rule (23) of Rule 14 of the CCS (CCA) Rules, 1965 has been violated, we are unable to agree with applicant's contention, as we find that the Inquiry Officer has discussed the evidence before him before coming to the conclusion that the article of charges is substantially proved. It is settled law that Courts/Tribunals cannot re-appreciate the evidence so as to substitute its reasons and findings for that of the Competent Authority. Therefore, to the limited extent, as mentioned above, the contention of the learned Counsel for applicant is upheld.
14. With regard to claim of the applicant for stagnation increments, the respondents have referred to Instruction No. 15 below FR 26 dated 3.7.1987, 30.11.1998 and 7.6.1990. They have also referred to the amended Instructions dated 10.8.1993 in support of their contention, which is marked as Annexure R-1 but the same has not been annexed. In the rejoinder, the applicant has reiterated his stand with response to these Instructions but has also not given a copy of the 1993 Instructions. In view of what has been stated in the affidavit regarding Government of India, Ministry of Finance O.M. dated 10.8.1993, by which the element of disciplinary case pending against the employee has been delinked, from the date of issue of those Instructions, as the applicant has retired from service on 30.11.1992 i.e. prior to those Instructions, the action of the respondents cannot be faulted. To this extent the claim of the applicant for quashing the impugned order dated 19.4.1999 is rejected.
15. In the result, for the reasons given above, the O.A. partly succeeds and is disposed of with the following directions :
(i) The impugned penalty order dated 4.5.1998 is quashed and set aside. Accordingly, the respondents are directed to pay the applicant the due amount of pension which was deducted by virtue of the penalty order within two months from the date of receipt of a copy of this order.
(ii) In the circumstances of the case, the claim of the applicant for interest and other claims are rejected.
No order as to costs.