Central Administrative Tribunal - Allahabad
(U/S 19 vs Union Of India Through Its Human Rights ... on 19 April, 2016
(Reserved) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD (Circuit Sitting at Nainital) This the 19th Day of April, 2016 Honble Mr. Justice Dinesh Gupta, Member J. Honble Mr. O.P.S Malik, Member A. Original Application No. 433 of 2011 (U/S 19, Administrative Tribunal Act, 1985) Harsh Singh Mahara, son of Sri J.S Mahara, Resident of Kendriya Vidyalaya, District - Almora. Applicant V E R S U S 1. Union of India through its Human Rights Department Secretariate, New Delhi. 2. Assistant commissioner, Kendriya Vidyalaya Sangathan, Dehradoon Region, Salawala, Hathibarkala, Dehradun. 3. District Magistrate, Almora / Chairman, Committee of Management, Kendirya Vidyalaya, District - Almora. 4. Sri K.C Aahuja, Principle, Kendriya Vidyalaya, District Almora. 5. Shri A.K. Parasar, Lower Divisional Clerk, Kendriya Vidhyalaya, District Almora. 6. Joint Commissioner (Admn.) / Revisionary Authority, K.V.S, H.Q, New Delhi. ..Respondents Advocates for the applicant :- Shri U.S. Bhakuni Advocate for the Respondents :- Shri Sayed Nadim O R D E R
DELIVERED BY:-
HONBLE MR. O.P.S. MALIK (MEMBER-A) By way of the instant Original Application filed under Section 19 of Administrative Tribunals Act 1985, the applicant has prayed for following main relief: -
1. set aside the impugned order No. F.PF/HSM/UDC/KVA/2010-11/49 dated 19.01.2011 passed by the respondent no. 4, Memorandum No. F.18061/6-55/2010 KVS (DDR)/8579 and order No.F.18063/7-1/2011-JVS (DDR)/8581 dated 18.03.2011 and order dated 6/7.09.2012 passed by the respondent no. 2 and 6 (Annexure A-1 and A-1A)...
2. The facts of the case are that the applicant was served with charge sheet dated 20.10.2010 under Rule 16 of CCS (CCA) Conduct Rules 1965 (Annexure A-II) to which he submitted his reply on 29.10.2010 (Annexure A-III) and requested for investigation / enquiry in view of the seriousness of charges leveled against him. On receipt of reply from the applicant, the Disciplinary Authority vide order dated 19.01.2011 (Annexure A-I) did not accede to the request of the applicant for thorough inquiry and passed the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of three years, without cumulative effect and not adversely affecting his pension. The applicant preferred an appeal dated 25.01.2011 (Annexure A-14) having two parts i.e. Part A and Part B. The Appellate Authority by two separate orders dated 18.03.2011 (Annexure A-I) decided the appeal of the applicant. Part A of the Appeal was disposed of whereas, Part B, which relates to the appeal was rejected and the order of Disciplinary Authority was upheld by the Appellate Authority. Thereafter, the applicant filed Revision dated 10.06.2011, which has also been rejected by the Reviewing Authority vide order dated 06/07.09.2012 (Annexure A-1A).
3. In the present original application it has been averred on behalf of the applicant that the charge sheet has been issued by the Respondent no. 4 with malafide intention only to harass the applicant. The applicant has already approached the Assistant Commissioner with regard to his harassment by the Principal / Respondent no. 4 and without taking into consideration his applications, the Assistant Commissioner issued a memorandum dated 07.01.2011 (Annexure A-6) directing the applicant not to challenge the authority of the Principal and carryout the directions of the Principle in letter and spirit. It is further contended that the Disciplinary Authority without considering the points raised in the reply to the charge sheet had passed the order dated 19.01.2011. It is also averred that without affording proper opportunity of hearing in the disciplinary enquiry the disciplinary authority has passed the penalty of reduction to a lower stage in the time scale of pay bby one stage for a period of three years, without cumulative effect. Therefore, the penalty awarded against the applicant is not sustainable.
3. Upon notice the respondents have filed Counter Affidavit. It is contended that the allegation of harassment is totally false and baseless and the applicant was habitual of making vague and fabricated allegations. It is stated that the Principal, Kendriya Vidyalaya, Almora by order dated 29.01.2010 asked the applicant to handover the charge of L.D.C to one Shri A.K. Parashar, L.D.C but despite repeated direction, he did not comply the order. The respondents have further contended that the applicant was given opportunity of hearing and in this regard, he had been issued a show cause notice, as envisaged for minor penalty, before passing the penalty order and the applicant had also submitted his reply to the show cause notice. Therefore, the orders passed by the respondents are justified and have been passed after taking into account all relevant documents and evidence on record.
4. In the Rejoinder Affidavit, the applicant has denied the allegation of not handing over the charge to Shri A.K. Parashar as well as disobedience of the order of superiors. In this regard, it is stated that the applicant made several request to the authorities to specify the charge / records to be handed over to Shri A.K. Parasar, L.D.C. It is further stated that the applicant submitted a detailed representation before respondent no. 4 on 20.10.2010 and denied the charges leveled against him. It is alleged in the Rejoinder that the Principal is partial in the self created matter.
5. Heard Shri U.S. Bhakuni, learned counsel for the applicant and Shri Syed Nadim, learned counsel for respondents and perused records.
5. Learned counsel for the applicant contended that the action against the applicant was vindictive and motivated by the other considerations as he was not given an opportunity to explain his position. Further, the order dated 19.01.2011 has been passed by an authority, who is non-competent to pass such order in the case of the applicant. Hence, penalty to the applicant is not sustainable.
6. On the other hand, learned counsel for respondents has vehemently opposed the contention of the counsel for the applicant and submitted that the allegation of harassment is baseless. He has produced before us a document titled Appendix B Schedule II showing various competent authorities in Kendriya Vidyalaya Sangathan , who are competent to award penalties under CCS (CCA) Rules 1965 and contended that the Assistant Commissioner / Principal are the competent authorities to take decision in the cases relating to the U.D.C, L.D.C and Lab Assistants. He has further stated that the applicant was given an opportunity of hearing by issuing a show cause notice as envisaged for minor penalty before passing penalty order. Moreover, this point has not been raised earlier. Concluding, he has reiterated that the orders passed by the respondents are justified, which have been passed after taking into account all the relevant documents and evidence on record.
7. After hearing rival contentions and perusal of record , it is seen that a Memorandum dated 20.10.2010 was issued by , the Principal, Kendriya Vidyalaya, Almora (Respondent no. 4) to the applicant mentioning therein a statement of imputation of misconduct on which the action was proposed to be taken. The applicant was given an opportunity to make his representation. This notice was issued under Rule 16 of CCS (CCA) Rules 1965. The applicant submitted his representation on 29.10.2010. After considering this representation, the Respondent no. 4 / Principal, Kendriya Vidyalaya, Almora imposed following penalty on the applicant vide order dated 19.01.2011: -
Accordingly, a penalty of reduction to a lower stage in the time-scale of pay by one stage for a period of three years, without cumulative effect and not adversely affecting his pension is imposed upon Shri H.S Mahara, UDC, KV,Almora, with immediate effect.
8. Applicants appeal was rejected by the Respondent no. 2 / Assistant Commissioner on 18.03.2011 holding that the appeal was devoid of merit. Thereafter, a revision was preferred by the applicant to the Joint Commissioner / Revisionary Authority, which was also rejected.
9. From the above, it becomes clear that the applicant was awarded minor penalty, as provided under Rule 11 (i) to (iv) of CCS (CCA) Rules. The procedure for awarding minor penalty is prescribed under Rule 16 of CCS (CCA) Rules, the relevant portion which is quoted below: -
Rule 16. Procedure for imposing minor penalties (1). Subject to the provisions of sub rule (3) of Rule 15, no order imposing on a Government servant any of the penalties specified in Clause (i) to (iv) of Rule 11 shall be made except after
(a). informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehavior on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (3) to (24 of Rule 14, in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary;
(c). taking the representation, if any, submitted by the Government servant under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration;
(d). recording a finding on each imputation of misconduct or misbehavior; It is established that proper procedure was followed in the instant case under rule 16 of CCS (CCA) Rules 1965 to award minor penalty to the applicant.
9. Insofar as the contention about non-competence of the disciplinary authority is concerned, it is clearly stated in the Schedule mentioned supra, the Assistant Commissioner / Principal is the competent authority to award penalties (i) to (iv) under Rule 11 of CCS (CCA) Rules 1965. Hence the contention of the applicants counsel about non-competence of the disciplinary authority does not have any substance, as the penalty imposed is undoubtedly a minor penalty. The appeal and revision have also been duly rejected.
10. In view of the facts and circumstances of the case and rule position, we are of the considered opinion that the applicant has not been able to establish his case. The minor penalty awarded to him was by the competent authority and as per the procedure laid down for such penalties. The appeal and the revision preferred by the applicant were also duly considered and disposed of. Hence the O.A deserves to be dismissed.
11. Accordingly, the O.A is dismissed. No costs.
(O.P.S. Malik) (Justice Dinesh Gupta)
Member-A Member-J
Anand
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O.A No. 433/11