Central Administrative Tribunal - Jodhpur
Vijay Bhatnagar S/O Shri Jagdamba ... vs Union Of India Through Secretary on 23 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.209/2008
Jodhpur this the 23rd day of October, 2013
Reserved on 03.10.2013
CORAM
Honble Mr.Justice Kailash Chandra Joshi, Member (J),
Honble Ms. Meenakshi Hooja, Member (A)
Vijay Bhatnagar S/o Shri Jagdamba Prasad, aged 58 years, R/o Air Force Station, Jaisalmer, at present Principal Kendriya Vidyalaya, Jaisalmer.
.Applicant
Mr. K.S. Chouhan, counsel for applicant.
Versus
1. Union of India through Secretary, Ministry of Human Resource and Development (HRD), Shastri Bhawan, New Delhi.
2. Vice Chairman, Kendriya Vidyalaya Sangathan (KVS), Ministry of HRD, Shastri Bhawan, New Delhi.
3. Commissioner, Kendriya Vidyalaya Sangathan (KVS), 18, Institutional Area, Sahid Jeet Singh Marg, New Delhi.
.Respondents
Mr. Avinash Achariya, counsel for respondents.
ORDER
Per Meenakshi Hooja, Member (A) This OA has been filed by applicant, Vijay Bhatnagar, under Section 21 of the Administrative Tribunals Act, 1985 challenging the order No.F-9-15/2006-KVS (vig.) dated 05.11.2007 (Annexure-A/1) passed by the respondent No.2, order No.F-9-15/2006-KVS (vig.) dated 23.11.2006 (Annexure-A/2) along with its corrigendum dated 10.01.2007 passed by respondent No.2, and order No.F-8-18/2001-KVS (vig.) dated 17/18.01.2006 (Annexure-A/3) passed by respondent No.3 along with its corrigendum dated 24.01.2006.
2. The brief facts of the case as averred by the applicant are that the Assistant Commissioner (Administration) New Delhi addressed a letter dated 21.05.2001 to Assistant Commissioner (KVS) Silchar Region, enclosing a copy of the representation of father of Master Rohan Negi and thereafter the letter dated 23.05.2001 was sent to the Principal of the School KVS, Nazira for reconsideration of the result of Master Rohan Negi. That when the applicant who was the then Principal of the School did not adhere to the illegal direction which were contrary to the provisions of the rules/circular, the applicant was made a scape goat in the matter and in vengeance thereto the Assistant Commissioner ordered for inquiry of irregular financial activities at KV Lekha Pani vide order dated 23.05.2001. Later on, further directions contrary to the rules were also issued and because the applicant did not follow the arbitrary and illegal directions, a fact finding committee was constituted by the Assistant Commissioner and the administration was bent upon harassing the applicant. The administration acting in arbitrary and malafide manner ordered/placed the applicant under suspension vide order dated 26/29.04.2002 (Annexure-A/10), and kept his headquarters at Regional Office Silchar. Though it is obligatory on the part of the administration to review the suspension order within 90 days as well as review the subsistence allowance but the authorities failed to carry out their obligations despite regular representation on the part of the applicant. It has been further averred that the Disciplinary Authority vide Memorandum dated 13.05.2003 issued a charge sheet (Annexure-A/11) along with the articles of charges, list of documents as well as list of witnesses, much after the stipulated period and even the Inquiry Officer was appointed on 20.11.2003 after a considerable delay of nearly six months. The Inquiry Officer drew order sheets during the inquiry proceedings and permitted defence documents to be supplied to the Charged Officer (applicant) and the Presenting Officer was directed to provide the requisite and relevant documents to the Charged Officer but the same were not made available, adversely affecting his right of defence. Amongst the vital documents which were not made available was a receipt of Rs.1390/- which was given by Dr.S.A. Rahman to Nripen Chandra Deka in presence of Vijay Kumar Yadav, relating to Charge No.II. Similarly, the concerned note sheet approved by the Chairman, VMC of KV Lekhapani on 29.10.1999 whereby he approved payments for the TA bills of the applicant was not made available to the applicant. The Inquiry was completed without the vital documents and without taking into account the pleas raised by the defence (applicant) or relevant circulars issued by the KVS and the Inquiry Officer submitted his report to Disciplinary Authority on 30.09.2004 (Annexure-A/21). In the Inquiry Report, Articles of the Charge II, V, VI were found to be established and Articles of Charges III and VIII were found to be partly established and the same was sent to Central Vigilance Commission (CVC) for its remarks but the CVC has not submitted its remarks on each and every Article of charge (Annexure-22). The Disciplinary Authority without taking into consideration the brief submitted by the CO as well as non-consideration of relevant and concerned documents passed the order dated 17/18.01.2006 (Annexure-A/3), while considering the gravity of charges established against the charged officer and 2nd stage advise of CVC awarding a major penalty as under:-
(i) The pay is reduced by seven stages from Rs.12,275/- to Rs.10,000/- i.e. at the initial stage in the time scale of pay for the post Principal i.e. Rs.10000-325-15200 for a period of five years with immediate effect with further directions that he will not earn increment during the period of penalty (five years) and that on the expiry of this period the reduction will not have the effect of postponing his future increments.
(ii) Suspension of Shri Vijay Bhatnagar is revoked and he is posted at Kendriya Vidyalaya, Garhara (Patna Region).
(iii) The revocation of suspension order will be effective from the date of joining of duty by Shri Vijay Bhatnagar at his new place of posting and the period of suspension i.e. from 29.04.2002 to till the date of his joining will be treated as dies non. Vide Corrigendum dated 24.01.2006, the period of penalty mentioned at Serial no.(i) was be read as three years instead of five years.
3. It has been further averred that the punishment was awarded in an arbitrary manner and with non-application of mind, and therefore, an appeal was filed by the applicant before the Appellate Authority. But the Appellate Authority did not consider the defence taken in the appeal as well as the documents mentioned therein and passed the order dated 23.11.2006 (Annexure-A/2) under the designation of Revisional authority, as under:-
(i) His pay is reduced to the initial stage in the time scale of Rs.10000-325-15200 for a period of two years with further directions that he will not earn increment during the period of penalty. On expiry of the said period of penalty, the reduction will have the effect of postponing future increments of his pay.
(ii) Out of period of suspension he may apply for leave as due and the remaining period will be treated as dies-non.
Later a corrigendum was issued on 10.01.2007 that in the order dated 23.11.2006, the designation may be read as Chairman, KVS and Appellate Authority instead of Chairman, KVS and Revisional Authority.
4. It has been further averred in the OA that when the applicant moved an application before the Appellate Authority to give opportunity of hearing then the applicant was provided the opportunity of personal hearing and was directed to file a representation, which was filed by the applicant. But the Appellate Authority without considering the ground of defence of the applicant as well as the documentary evidence and factual aspects in the matter confirmed the previous order dated 23.11.2006 vide its order dated 05.11.2007 (Annexure-A/1).
5. In sum it has been averred by the applicant that prosecution failed to make available the documents which were at the root of the allegations of charge and the right of applicant was adversely affected and important documents regarding receipt of money as given by Dr. S.A. Rahman was also not made available to the applicant, and the note sheet dated 29.10.1999 by which the Chairman VMC has approved the payments of TA bill has not been produced. It has been stated that the charges themselves are ill-levelled and the same deserve to be quashed on factual position apart from the fact that the disciplinary authority has awarded an excessive, arbitrary and illogical punishment and though it was mandatory to review the suspension order after 90 days, the same was not done. It has been further averred that the applicant acted in accordance with the procedure and guidelines on all matters but the punishment was awarded to him on arbitrary grounds. Therefore, the applicant by way of this application has sought the following reliefs:-
(i) That the punishment order Annexure-A/3 dated 17/18.01.2006 alongwith its corrigendum dated 24.01.2006 and Appellate Authority Order dated 23.11.2006 (Annexure-A/2) alongwith its corrigendum dated 10.01.2007 and the order Annexure-A/1 dated 05.11.2007 passed by the Appellate Authority be quashed and set aside and the applicant be granted all the benefits follows there to on the dismissal of aforesaid order.
(ii) That the remarks of dies non be quashed and the period of suspension be counted as on duty while granting all the benefits thereto.
(iii) That the penalty awarded by the Disciplinary Authority as well as the Appellate Authority be quashed and set aside.
(iv) That any other order just, proper and appropriate in the facts and circumstances of this case may please be passed in favour of the applicant.
(v) That the application be allowed with costs.
6. By way of reply, the respondents have denied the right of the applicant and averred that the applicant Shri Vijay Bhatnagar, while working a Principal at Kendriya Vidyalaya, Lekhapani and Nazira, committed serious financial as well as administrative irregularities during the year 1998-1999 and 2000-2001, and therefore the applicant was placed under suspension vide order dated 26/29.04.2002. The headquarters of the applicant was also shifted to Kendriya Vidyalaya Sangathan, Regional Office, Silchar. As per the first stage advice of Central Vigilance Commission dated 28.01.2003 for initiating major penalty proceedings, the applicant was charge sheeted under Rule 14 of CCS (CCA) Rules, 1965 vide memorandum dated 13.05.2003. Shri A.K. Garde, Secretary (Retd.), CVC was appointed as the Inquiry Officer, who conducted the inquiry and submitted the report on 30.09.2004 with his findings to the effect that out of 10 charges framed against the Charged Officer, 3 charges were fully established; 2 partly established, and the other 5 were not established. As per the second stage advice of CVC for imposition of a major penalty, other than one of the stiff major penalties, upon the Charged Officer, a penalty of reduction of his pay to the initial stage in the time-scale of pay for the post of Principal for a period of five years was imposed upon the applicant by the Disciplinary Authority vide order dated 17/18.01.2006. Suspension of the applicant was also revoked and the applicant was posted at Kendriya Vidyalaya, Garhara and the posting was made effective from the date of joining of the applicant at the new place of posting. The period of penalty was reduced to three years, instead of five years, vide corrigendum dated 24.01.2006. On consideration of the appeal of the applicant, the Vice Chairman, Kendriya Vidyalaya Sangathan and the Appellate Authority, vide order dated 23.11.2006, reduced the period of penalty to two years. The period of suspension was also regularized by way of applying for leave to the extent due by the applicant and the remaining period to be treated as dies-non. A corrigendum was also issued on 10.01.2007 to the order dated 23.11.2006, wherein Appellate Authority was inadvertently mentioned as Revisional Authority instead of Appellate Authority. Again the applicant was accorded an opportunity of personal hearing on 05.06.2007, which the applicant availed of and submitted a representation dated 12.06.2007 before the Appellate Authority which was also disposed of vide order dated 05.11.2007. It has been further stated in the reply that a bare perusal of the orders, which have been challenged, and the material available on record would reveal that the action of the respondents is perfectly legal, valid and in consonance with the service law jurisprudence. The applicant has failed to make out any case to sustain the challenge to the action taken by the respondents. The applicant has been given fair treatment in the inquiry and there has been lawful exercise of power by the disciplinary and appellate authorities and there has been no abuse of power.
7. It has been further averred that initially a preliminary inquiry was ordered after the internal audit report revealed serious financial irregularities committed by the applicant while working as Principal at Kendriya Vidyalaya, Lekhapani. The constitution of fact finding inquiry/committee was also based on allegations of irregularities regarding admission of students in Class XI and in the examination results at Kendriya Vidyalaya, Nazira, and these allegations were found proved in the fact finding inquiry and therefore there has been no malice or arbitrary exercise of power. It has also been averred that the applicant after being placed under suspension vide order dated 29.04.2002, pending contemplation of a disciplinary proceedings, did not report to his new headquarters, thereby disobeying the directions of the competent authority. The applicant has failed to substantiate any illegality in the decision making process so as to vitiate the inquiry proceedings and from the material available on record, it is evident that the copies of the relevant documents were brought on record to substantiate the charges against the applicant. It has been further averred that the entire case along with the inquiry report was sent to CVC for 2nd stage advice, and the disciplinary and the appellate authorities have taken full consideration of all proceedings including his representation.
8. While denying the grounds taken in the application, the respondents in their reply have stated that the applicant was charge sheeted vide memorandum dated 13.05.2003 consisting of 10 Articles of Charge. The applicant demanded for nearly 34 additional documents which were of different institutions, and as per the report of the Inquiry Officer almost all the defence documents have been provided to the applicant. As per the finding of the Inquiry Authority, Articles of Charge No.II, V, VI were fully established, while Articles of Charge III & VIII were partly established. The CVC, after examining the inquiry report and making certain observations, advised held that taking into account all the relevant factors and the nature of proven charges, a major penalty, other than one of the stiff major penalties be imposed. Accordingly, after due hearing and following the process of law, the Disciplinary Authority and Appellate Authority issued their orders.
9. With reference to the allegations regarding specific documents with regard to Article of Charge No.II, it has been stated that the applicant had drawn a self-cheque No.4800035 dated 13.01.1999 for Rs.1390/- and though on the counterfoil of the cheque, the name of the recipient was written as Dr. S.A. Rahman and the amount was withdrawn from the bank on 13.01.1999, but no acknowledgement to the effect of receipt of payment from Dr.S.A. Rahman was available on record and the applicant could not get Dr.S.A.Rahman as defence witness to prove his innocence. The belated receipts of the year 2004 were made after the charge sheet had been issued and incorporated with the brief and appeared to be an after thought. With regard to Article of Charge No.V, the applicant himself admitted in his brief statement of defence before the Inquiry officer that the TA bills were submitted for pre-audit on 30.10.1999 and the payment was drawn by him on 29.10.1999 well before going through the full process of pre-audit. The financial misconduct on the part of the applicant was fully established. It has been averred that the applicant violated codal provisions of the Kendriya Vidyalya Sangathan with regard to financial misappropriation as well in cases of admission and examination, which have been fully / partly established in the inquiry and the pre-ponderance of evidence is against the applicant and he has not suffered from any legal injury therefore is no entitled to any legal remedy. The applicant was himself responsible for his suspension getting stretched as he did not go to his headquarters promptly and his request regarding change of headquarters was rejected after due consideration. The authority have treated his suspension period fairly as he could apply for leave as due and remaining period would be treated as dies-non.
The applicant filed a rejoinder reiterating the same points as averred in the OA.
10. Heard both the parties. Counsel for the applicant contended that as per the Inquiry report at Annexure-A/21, Articles of Charges-I, IV, VII, IX, and X are not established, and Articles of Charges II, V, and VI stand established, and Articles of charges III and VIII are partly established. However, these findings are not based on proper appreciation of facts and rules and have been arrived at without taking into account important documents andevidence which was denied to the applicant during the inquiry.
11. Article of Charge II states as under :-
The cheque amounting to Rs.1390/- for medical check up of 278 students in the name of Dr. S.A. Rahman was issued vide cheque No.R.HQ 480035 dated 13.01.1999. Though the counterfoil of the Cheque shows Dr. S.A. Rahmans name, the Cheque issued was Self Cheque. Documents confirm that the self cheque (with counter foil in the name of Dr.S.A. Rahman) was got encashed by Sh.N.Deka, Group D employee the amount so encashed was handed over to Shri Vijay Bhatnagar while he was functioning as Principal at Kendriya Vidyalaya, Lekhapani.
It has also been confirmed from Dr.S.A. Rahman that he did not received the amount of Rs.1390/- (one thousand three hundred ninety only). The original voucher No.D.38/P 126 also does not support the payment of Rs.1390/- to Dr. S.A. Rahman.
Shri Vijay Bhatnagar thus managed to embezzle Rs.1390/- from the Pupils Fund of the Vidyalaya by way of fraudulent manipulation.
Shri Vijay Bhatnagar, Principal, has thus committed misconduct and acted in a manner unbecoming of an employee of the Kendriya Vidyalaya Sangathan and violated Rule 3(1) (i) &(iii) of CCS (Conduct) Rules, 1964 as extended to the employee of KVS. Counsel for applicant contended that this charge has been wrongly proved against the applicant. He referred to the evidence of Shri Deka, Group D employee of K.V. Lekhapani who stated that he had put his signature on the back of the cheque and after encashment gave the amount of Rs.1390/- to Dr. Rahman. He also referred to the evidence of Vijay Kumar Yadav, Ex. Physical Education Teacher who said that on 13.01.1999, he and Deka went to Punjab National Bank, Lekhapani and then went to Dr. Rahmans residence and gave the amount of Rs.1390/- in cash to Dr. Rahman and then Dr. Rahman gave a receipt for it which he gave to Mukut Hazrika UDC. He further contended that the copy of the receipt given by Dr.Rahman was not provided to him, although the Inquiry Officer permitted for the same. Thus though there is enough evidence to show that the money was given to Dr. Rahman, yet the Inquiry Officer without any basis found the charge established.
12. Article of Charge-V is as under:-
Shri Vijay Bhatnagar, Principal preferred five TA bills for Rs.1268/-, Rs.1466/-, Rs.1186/-, Rs.2198/- and Rs.758/0. These TA Bills were returned to Shri Vijay Bhatnagar for compliance of audit observations. He drew full amount what he claimed ignoring the audit observations and without getting the bills pre-audited.
On examination of records it reveals that Shri Vijay Bhatngar, Principal without carrying out the observations of audit drew the full amount of TA Bills what he claimed according to his own will which is a gross violation of Article 52(b) of the Accounts Code.
Shri Vijay Bhatnagar, Principal has thus committed misconduct and has acted in a manner unbecoming of Sangathan employee and violated of Rule3(I)(i) and (iii) of the CCS (Conduct) Rules, 1964 as extended to the employees of KVS. In this regard counsel for the applicant contended that the applicant was relieved on 31.10.1999 from the post of Principal, KV Lehapani and that he had drawn the said TA bills amount prior to being relieved. The pre-audit was made on 23/26.03.2000 and which was received by him on 31.03.2000. Thus, it cannot be said that the bills were drawn by him even after observations from the audit; actually the bills were drawn by the applicant earlier and the audit observations came many months later. Thus it cannot be said that he draw full amount of what he claimed ignoring the audit observations and without getting pre-audit. It was also stated by the counsel for the applicant that these bills were submitted with due counter signatures of the Chairman VMC and this notesheet was not provided to him, nor produced as a document, which would have shown that he committed no irregularity. Thus, this charge has also been found to be established without any basis.
13. Article of charge VI is as under:-
Shri Vijay Bhatnagar while working as Principal at Kendriya Vidyalaya, Naziara made admissions of 25 students in class-XIth Science in the session 2000-2001 out of 25 cases only six cases were of fresh admission. In two cases students secured 40/100 marks in Maths in Class-X were given Science with Maths in Class-XI. In the case of Devjot Taye a certificate of Ease Zone Sainik Schools Football Championship under the GIS of Sainik Schools Society was produced one day after the fact finding inquiry proceedings. As per the KVS Guidelines the weightage for such tournaments/championship conducted by a Society will not be given. He too got 40 marks in Maths in Class X and given admission in Class-XI. Hence he has violated admission guidelines.
Shri Vijay Bhatnagar, Principal has acted in a manner unbecoming of a Sangathan employee and violated of Rule 3 (I) (i) and (iii) of the CCS (Conduct) Rules, 1964 as extended to the employees of KVS. In this context, it was contended by the counsel for the applicant that in the case of Master Devajot Taye and Master Manoj Boro both were Scheduled Tribes candidates as per their certificates and for which 5 marks are admissible as per the guidelines, therefore 5 marks were given to each of them for their being belonging to ST category, and another 5 marks because they have participated in KVS/State Level Sports. As per the certificate Master Manoj Boro participated in the Inter District Football Championship and Shri Devajot Taye participated in East Zone Sainik Schools Football Championship under the aegis of Sainik School Society which is under Ministry of Defence. The Inquiry Officer has wrongly established the charge because the relaxation were given in terms of participation in sports were correct and even the CVC had held that the charge No.VI is only partly proved as there is State level game certificate of one of the students.
14. Article of Charge No.III is as under:- (Partly established by Inquiry officer) Shri Vijay Bhatnagar while he was functioning as Principal at Kendriya Vidyalaya, Lekhapahni recorded in the Cash book the payment of Rs.11860/- (Eleven thousand eight hundred sixty only) to M/s Verma Brothers, Guwahati by Cheque No.310206 dated 11.2.98 towards purchase of Sports materials.
On examination of records it is found that against Bill (Invoice) No. Vijay Bhatnaar/16/97-98 dated 01.12.1997 the full payment was made through Cheque No.RHL 310206 dated 11.02.98. But the said Cheque for Rs.11860/- cash from the bank has handed over to Shri Vijay Bhatnagar.
In order to embezzle the amount Shri Vijay Bhatnagar recorded the name of the firm M/s Verma Brothers on the counterfoil of the cheque and in practice issued the self cheque as above and the money receipt No.019 dated 20.2.1998 was managed to obtain and the payment shows that the amount received by Cheques No.310206 which speaks fraudulent manipulation by Shri Vijay Bhatnagar, Principal by drawing the self cheque. He has violated Article 52(vi) a,b,c and Article 94(vii) of the Accounts Code.
Shri Vijay Bhatnagar, Principal has thus committed misconduct and acted in a manner unbecoming of an employee of the Kendriya Vidyalaya Sangathan and violated Rule 3 (1) (i) and (iii) of the CCS (Conduct) Rules, 1964 as extended to the employees of KVS. It was contended by the learned counsel for the applicant that even the Inquiry Officer has held that there was no embezzlement of funds and the stock certificate and stock holders are also thereon the receipt, the only violation is that instead of issuing cheque in the name of the party, it was issued as a self-cheque which is violation of the codal provisions and to that extent it can only be taken as procedural error and no substantial charge is made out.
15. Article of Charge-VIII is as under:-
In class XI Sc. out of 25 students 14 declared passed and 09 failed. 08 students were placed for supplementary, out of which 07 failed and one passed. The following two students who were detained out rightly without following the promotion/supplementary rules contained in para 116 to 118 to Education Code could have been placed in supplementary in the subject underlined below.
(a) Nipen Sarmah Mazumdar Total marks=232.6 passed in all four subjects English 48.7, Phy.51.3, Chem.49.1, Bio.52.1 and Maths31.4/100
(b) Sumit Kumar Singh Total aggregate 205.7, Eng.42.5, In pr.49, Physics 44.2, Chem.40.9 and Maths 29.5/100 whereas two parallel cases as mentioned below were placed in Supplementary.
(c) Partha Jyoti Mohan Total aggregate : 213/500= 42.6% Eng.49.2, Phy.38.6, Chem.46.5 and Maths 32.7/100
(d) Rohan Negi Total aggregate: 222.3/500, Eng.42.4, In.Principal.48.5, Phy.53.5, Chem 45.9 and Maths 32.0/100 Thus Shri Vijay Bhatnagar had adopted different Yard stick in declaring the result thereby he has shown undue favour to a Section of students in violation Article 116, 117, 118 of the Education Code for KVS.
Shri Vijay Bhatnagar, Principal, has thus acted in a manner unbecoming of a Sangathan employee and violated of rule 3 (I)(i)&(iii) of the CCS (Conduct) Rules, 1964 as extended to the employee of KVS. This articles of charge pertains to discriminatory application of the guidelines and declaring the results Master Partha Jyoti Singh and Master Rohan Negi and by appointing different yardsticks detaining Master Sumit Kumar Singh and Master N.S. Mazumdar. It was contended by the counsel for the applicant that the Inquiry Officer also has accepted that the decision taken regarding Master Partha Jyoti Mohan and Master Rohan Negi and Master Sumit Kumar Singh were correct and only held the case of Master N.S Mazumdar as wrong. However, counsel for the applicant stated that the policy of declaring fail/pass or supplementary has been laid down in guidelines dated 16.09.1999 and as modified vide letter dated 13.04.2000. He referred to mark sheet of Shri N.S. Mazumdar which shows that he got 24.6 out of 60 and 06.8 out of 40 and is total marks were 31.4, and as he got less than 13 marks out of 40 in the Annual Examination, he was rightly detained and there is no violation of guidelines or discriminatory application of yardsticks.
Thus, overall, the counsel for applicant contended that without consideration of vital documents the inquiry was not based on proper appreciation of facts and evidence and based on the arbitrary inquiry, the punishment have been given by the Disciplinary and Appellate Authority which should be quashed and set aside.
16. It was further contended by the counsel for the applicant that vide order dated 05.11.2007 Annexure-A/1 his prayer for declaring the suspension order as null and void and treating the entire period of suspension as on duty was rejected without any valid or legal basis. Though he was suspended on 29.04.2002 but his order for revocation was only made on 18.01.2006 and he remained suspended for 1370 days and during the entire period the suspension was not reviewed though as per Rule 10 of CCS (CCA) Rules, 1965, it is required to be reviewed within 90 days and this mandatory provision was ignored, thus his suspension period is required to be treated as on duty.
17. In support of his arguments, learned counsel for the applicant relied upon the case of U.P. State Road Transport Corporation v. Muniruddin, reported in 1991 (3) SLR, regarding non-supplying of documents; the case of State Bank of India & ors. v. K.P. Narayanan Kutty, reported in (2003) 2 SCC 449 regarding the duties and responsibility of the Disciplinary Authority when treating as fully proved the charges found by Inquiry Officer to be partly proved; and the case of Bhagat Ram v. Stage of Himachal Pradesh & Ors., reported in 1983 SCC (L&S) 342 regarding punishment being proportionate to the gravity of misconduct; and the case of Union of India & Ors. v. Dipal Mali, reported in AIR 2010 SC 336 regarding review of suspension.
18. In response, counsel for the respondents contended that with reference to article of charge No.II, the applicant did not issue a cross cheque as required under the KVS Accounts Code Article 94 (vii) and when he was relieved in October, 1999 itself, production of a receipt of payment by Dr. Rahman of the year 2000 given in the year 2004 was a belated after thought and even the so-called receipt was never on the official record. No response was received from Dr. Rahman to the then Principals request to furnish the receipt ; thus the findings of the Inquiry Officer regarding financial irregularities and violation of the code are fully established. .
19. As regards article of charge No.V, counsel for the respondents contended that the applicant did not wait for the pre-audit as required under the rules and claimed the TA bill payments. With regard to article of charge No.VI, counsel for the respondents contended that relaxation of 5 marks given to both the students for sports was not correct as both the students did not participate in Sports in State /KVS level and for the competitions in which they took part, as per their certificates, they could have been given at best the relaxation of 2 marks only; thus even after accepting the ST certificates, their total marks would not have been within the prescribed limit of 50; thus, there is violation of the guidelines and hence the findings of the Inquiry Officer are valid.
20. With regard to article of charge No.III/partly established the contention of the counsel for the respondents was that by issuing a self cheque for payment to an outside party, the provisions of Article 94 (vii) of KVS Accounts Code have been clearly violated. With regard to Article of charge No.III (partly established), the counsel for the respondent contended that there has been discrimination in applying the yardstick as observed by the Inquiry Officer. The counsel for the respondents summed up by saying that the Inquiry conducted has been detailed with full opportunity of hearing. As there was enough evidence against the applicant the Inquiry Officer in a well reasoned manner found the charges not established, established or partly established. The disciplinary and appellate authority after considering all the aspects of the case including advise of the CVC and after due opportunity of hearing at every stage have passed well reasoned and speaking orders. He added that there has been no malafide or arbitrary exercise of power, as alleged by the applicant, but on the other hand all the procedures and rules have been followed and based on detailed inquiry, the penalty orders have been passed by the authorities in accordance with law. As far as suspension is concerned, the applicant himself was responsible for it being stretched, as he did not joint promptly at his Headquarters and the period has been correctly treated as not on duty and regularized by leave to the extent due and the rest as dies-non. In support of his contentions, the learned counsel for the respondents has relied upon the case of State Bank of India & Ors. v. Narendra Kumar Pandey, reported in 2013 (2) SCC 740, wherein it has been held that in a departmental inquiry, the Disciplinary Authority is expected to prove the charges on preponderance of probability and not on proof beyond reasonable doubt, and also on the case of Lucknow K. Gramin Bank (Now Allahabad, U.P. Gramin Bank) & Anr. v. Rajendra Singh, reported in 2013 AIR SCW 4731 in which it has been held that it is for the Disciplinary Authority / Appellate Authority to decide the punishment to be awarded to the delinquent and the Court cannot usurp jurisdiction of disciplinary authority and decide punishment.
21. We have considered the rival contentions of both the counsels and also perused the record. With reference to Article of Charge No.II, the findings arrived at by the Inquiry Officer regarding violation of codal provisions by issuing of a self-cheque to outside party and non-production of timely receipt of the payment of Rs.1390/- appear to be cogent and call for no interference.
22. With regard to Article of Charge No.-V which has been found to be established in the inquiry, the contention of the counsel for the applicant has some force that he had claimed the TA bill and received the payment before being relieved on 31.10.1999 and the audit objections are of later period i.e. March, 2000 and that his Bill was submitted after due approval of competent authority.
23. With regard to Article of Charge-VI regarding admission in Class XI, the Inquiry Officer has found the relaxation of 5 marks regarding ST candidates valid in both the cases of Manoj Bora and Deojit Taye, but found that the certificates of Sports on the basis of which another 5 marks relaxation given were not of State level, therefore, 5 marks therein were not in accordance with the guidelines. A bare perusal of the certificates available on record also show that they do not appear to be of Sports / KVS level.
24. As far as Article of charge No.III is concerned, the Inquiry Officer has himself found the charge only partly established because though the money was received by M/s Verma and the items of sports were also entered in the stock register, yet there was violation of the codal procedure and as per Article 94 (vii) of KVS Accounts Code, outside party should be paid by cross cheque. We see no lacunae in the finding of the inquiry officer.
25. With regard to Article of Charge-VIII regarding results, the Inquiry Officer has found that in the declaration of examination result, three cases were according to the guidelines and in one case there was violation of guidelines, the charge has been partly established.
26. However, the CVC has recorded its view that the contentions of the CO (the applicant) that he had applied the same rules have not been considered by the Inquiry Officer.
27. After hearing the counsels of both the parties and a perusal of record it appears that overall the findings of the Inquiry Officer are based on substantial evidence and arrived at after detailed examination and reasons.
28. With regard to these charges, we further note that the opinion was also obtained from the CVC, which came to the following conclusions :
5. Taking into account all the relevant factors and the nature of proven charges, the Commission would advise imposition of a major penalty, other than one of the stiff major penalties, on Shri Vijay Bhatnagar, Principal.
29. It is further noted that the Disciplinary Authority has taken into account the findings of the Inquiry Officer and obtained the comments of the CVC as required, and further that the punishment imposed by the Disciplinary Authority was reduced by the Appellate Authority.
30. Thus on the basis of the above discussions, we find no force in the contentions of the counsel for the applicant that the disciplinary proceedings were vitiated either by arbitrariness, malice, malafide or by substantial violation of any procedure. As held by the Honble Apex Court in State Bank of India & ors. vs. Narendra Kumar Pandey, reported in (2013) 2 SCC 740, that in a departmental inquiry, the disciplinary authority is expected to prove the charges on preponderance of probability and not on proof beyond reasonable doubt. In the present case, detailed inquiry has been conducted with full opportunity of hearing and the opinion of CVC had been obtained. The decision of the Disciplinary Authority and Appellate Authority are based are well reasoned and speaking orders. This Tribunal is not expected to substitute its own judgment in the disciplinary proceedings unless any malafide, arbitrariness or violation of procedures and natural justice are established. In this case, no such case is made out as the inquiry report and decisions of the Disciplinary and Appellate authority regarding penalties are speaking and well reasoned and opportunity of hearing has been provided at every stage. Thus, no case is made out to quash the Annexures A/1, A/2 and A/3 (including corrigendum to A/2 and A/3) regarding the penalty imposed as they do not suffer from any illegality, infirmity and the applicant is not entitled to get any relief on this count.
31. However, it is noted that the suspension order dated 26.04.2002 was not reviewed within a period of 90 days as it is mandatory under the Rule 10 (6) and (7) of CCS (CCA) Rules, 1965, and thus it is not valid after 90 days in the eyes of law. Hence, the applicant is entitled to get the relief in accordance with Rule 10 (7) of the CCS (CCA) Rules, 1965 and for that period to be counted as on duty. To that extent Annexure-A/1, A/2 and A/3 are set aside partly regarding the suspension period, and it is ordered that the period of 90 days ending after the suspension order, till its revocation, is to be treated as on duty and benefits given to the applicant as admissible under the law.
31. On the basis of aforesaid discussions, the OA is partly allowed with no order as to costs.
(Meenakshi Hooja) (Justice K.C. Joshi)
Administrative Member Judicial Member
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