Central Administrative Tribunal - Delhi
Dr. Dharamendra Singh vs Union Of India And Others Through on 30 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 4079/2010 Reserved on:01.07.2013 Pronounced on: 30:08.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Dr. Dharamendra Singh S/o Late N. P. Singh R/o Plot No.33, Gopal Nagar, Dhansa Road, Najafgarh, New Delhi 110 043. .. Applicant. Applicant in person. Versus Union of India and Others Through 1. The Secretary, Ministry of Human Resource Development, Shastri Bhawan, New Delhi. 2. The Commissioner Kendriya Vidyalaya Sangathan 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi 110 016. 3. The Assistant Commissioner Kendriya Vidyalaya Sangathan (Regional Office), Govt. Hospital Road, Gandhi Nagar, Jammu. 4. Shri U.N. Khawarey Assistant Commissioner Kendriya Vidyalaya Sangathan, (Regional Office) Chandigarh. 5. The Principal K. V. No.2, Udhampur. 5. Shri G. S. Gill (Retired Principal) Village Dinewal, Tehsil: Kahdoor Sahib, District Taran Taran, Punjab. .Respondents. (By Advocate: Shri S. Rajappa) ORDER
Shri G. George Paracken:
The Applicant was a Post Graduate Teacher (Physics) in Kendriya Vidyalaya. Precisely speaking, his grievances date back to 17.02.1999, the day on which he was charge sheeted under Rule 14 of the CCS (CCA) Rules, 1965. During the period of 11 years between filing this Original Application on 03.12.2010 and on the aforesaid date of charge sheet, there were a number of departmental proceedings taken against him and a number of judicial proceedings initiated by him to resist them. While the first punishment imposed upon him was the order of removal from service passed against him on 20.09.1999, the last order in the series is the order of dismissal from service passed against him on 11.08.2009 which has been impugned in this Original Application.
Brief background of the case:
2. The Applicant joined service under the Respondent Kendriya Vidayala Sangathan (KVS for short) as a Primary Teacher on 02.11.1982. In the year 1986, on his selection as Post Graduate Teacher (Physics), he was posted in Kendriya Vidyalaya (K.V. for short) in Khetri Rajasthan. From there, he was transferred to K.V. No.2 in Patiala in the year 1994, then to K.V. No.3 Amritsar in the year 1996 and then to K.V. No.2 Amritsar where he joined for duty on 19.07.1996. Problems started with his posting in the said school. According to the Applicant, the Principal of the school did not allow him to work there and asked him to get out of the school on the ground that he stated to have talked many objectionable things about his good friend R.S. Bajaj, Principal of K.V. Patiala. Thereafter, he made a number of representation to the authorities of the KVS to post him in any other school. Finally, he got an advocate notice issued to the Respondents on 19.11.1996. But on 02.12.1996, the Respondents directed him to join the same K.V. No.2 Amritsar. Applicant having no other option, he reported again for duty in the said school on 12.12.1996. Later, the Principal of the said school issued him a Memo dated 31.01.1997 saying that he refused to take over the charge of Physics Lab. even after repeated instructions and, therefore, disciplinary action was being taken against him under Rule 11(8) of CCS (CCA) Rules, 1965. The Principal has also stopped his salary. The Applicant, therefore, made a representation to the Assistant Commissioner of K.V.S. Jammu against the aforesaid action of the Principal on 12.02.1997 stating that the Principal was making false allegations against him to trap him. He has also alleged that the Principal wanted to get his signature forcibly on stock register as there was shortage of material/substandard material in the stock. He has, therefore, requested the said authority to intervene and not to allow the Principal to stop his salary. But the Assistant Director took serious offence against him for the said representation stating that it was sent in violation of Rule 66 of the Education Code, according to which all representations have to be sent through proper channel and, vide Memorandum dated 18.2.1997 sought his explanation as to why disciplinary action should not be taken against him. The Applicant replied to the said Memorandum, vide his letter dated 25.02.1997, stating that he had no alternative but to make the representation directly as the complaint was against the Principal himself who created the problems on the following issues:-
(i) Payment of salary w..e.f. 2.3.1996 to 11.12.1996.
(ii) Inclusion of increment from 1993 onward and payment thereon.
(iii) Reimbursement of medical bills submitted long back February, 1996.
(iv) Payment of remaining due salary of 39 days in August and September, 1992 at K.V. 2 Khetri Nagar.
3. As the repeated representations did not evoke any useful result, he approached the Honble High Court of Delhi vide C.W. No. 3399/1997 seeking the following reliefs:-
(i) Pay of salary and allowances for the period 2.3.1996 to 11.12.1996.
(ii) Payment of salary and allowance for 39 days of August-September, 1992.
(iii) Payment of increment and consequential benefit thereon w.e.f. 1992 onward.
(iv) Payment of salary and allowance of the petitioner for the month of February, 1997 onwards till date.
(v) Payment of medical claim of the petitioner submitted in February, 1996.
(vi) Payment of TA/DA bills submitted in February, 1996.
The High Court vide order dated 10.12.1997, passed the following interim orders:-
In this application the prayer of the petitioner is that he has not been paid the salary and allowances. Even the subsistence allowance @ 75% of the salary admissible under the Rule has also not been paid to the petitioner. Directions are accordingly given to Respondents No.2 & 4 to pay the subsistence allowance as admissible to the petitioner if the same has not been paid, within 2 weeks from today.
4. Later, the Respondents served the Applicant with the Memorandum dated 17.02.1999 proposing to hold an enquiry against him under Rule 14 of the CCS CCA) Rules, 1965. The Statement of Articles of Charge framed against him was as under:-
Article-I That Dr. Dharmendra Singh while functioning as PGT (Phy) w.e.f. 12-12-96 to 20-11-97 in Kendriya Vidyalaya No. 2 A.F.S. Amritsar Cantt. did not take over the charge of Physics lab and stock ledgers along with stock in spite of office order and memorandum issued to him by the Principal Kendriya Vidyalaya No.2 Amritsar and instructions of Education Officer of Kendriya Vidyalaya Sanganthan (Jammu Region) Jammu. Sh. S.D. Sharmas to take over the charge, during preliminary enquiry held on 14-10-97 and he thus wilfully and deliberately disobeyed the lawful orders and instructions of his superiors which amounts to misconduct and dereliction of duty and thereby he contravened Rule 3(I) (II) and (III) of CCS (Conduct) Rules, 1964. He has therefore rendered himself liable to disciplinary action under CCS (CC&A) Rules, 1965.
Article-II That Dr. Dharmendra Singh while functioning as PGT (Phy) in the aforesaid Kendriya Vidyalaya is absenting from duty w.e.f 21.11.97 without any sanctioned leave. Thus such wilful absence amounts to unauthorized absence from duty and thereby he contravened Rule (I) (iii) of CCS (Conduct) Rules, 1964. He has therefore rendered himself liable to disciplinary action under CCS (CC&A) Rules, 1965.
Article-III That Dr. Dharmendra Singh while functioning as PGT (Phy) in Kendriya Vidyalaya No.2 Khetri Nagar entered into second marriage without divorcing his first wife. Thus he has violated CCS (Conduct) Rules 21(2) and rendered himself liable to disciplinary action under CCS (CC&A) Rules, 1965.
5. According to the first charge, Applicant while was functioning as PGT (Physics) with effect from 12.12.1996 to 20.11.1997 in KV No.2 AFS Amritsar Cantt. On his joining date, i.e., 12.12.1996 he was directed to take over the charge of Physics Lab and stock ledgers along with stock mentioned therein but he failed to do so. Thereafter, a board of teachers was constituted to verify the stock ledgers and stock in Physics Lab in order to hand over the charge to the Applicant. The said board of teachers reported that the Applicant refused to take over the charge. Thereafter, memorandum was issued to the Applicant to take over the charge. Again, he did not obey the said written instructions of the Principal. The Statement of Imputation of Misconduct issued to the Applicant in this regard reads as under:-
That Dr. Dharmendra Singh while functioning as PGT (Phy) w.e.f. 12.12.96 to 20.11.97 in Kendriya Vidyalaya No.2 Amritsar Cantt. did not take over the charge of Physics lab and stock legers along with the stock mentioned therein. On his joining report on 12.12.96, he was directed to take over the aforesaid charge vide this office letter No.2-2/C/19/Gen dated 28.01.97 Dr. Dharmendra Singh, PGT (Phy) was asked to take over the aforesaid charge but he failed to do so. A board of teachers vide office order No.2-2/C/20/Gen dated 28.01.97 was constituted to verify the stock ledger and stock in the physics lab in order to handover the aforesaid charge to Dr. Dharmendra Singh, PGT (Phy) and it was reported by the said board of teachers vide their report dated 28.01.97 that Dr. Dharmendra Singh, PGT (Phy) has refused to take over the aforesaid charge. A memorandum No.2-2/C/22/Gen dated 31.01.97 was issued to Dr. Dharmendra Singh, PGT (Phy) directing him to take over the charge failing which a disciplinary action was to be taken against him as per CCS (CCA) Rule 1965. But he did not obey the written instructions of the Principal vide office order No.2-2/C/62/Gen dated 14.03.97, a photocopy of the previous order No.2-2/C/Gen dated 28.01.97 was re-issued to Dr. Dharmendra Singh, PGT (Phy) through the Inquiry Officer Sh. S.D. Sharma, Education Officer, Kendriya Vidyalaya Sangathan (Jammu Region) Jammu on 14.03.97 during preliminary inquiry asking him to accept to take over the aforesaid charge from Mrs. Anita Parmar, PGT (Bio) and Lab. Attendant Sh. Daljit Singh but he again refused to take over the aforesaid charge. His refusal to take over the charge was conveyed to inquiry officer Sh. S.D. Sharma, Education Officer, KVS (JR) Jammu accordingly. Thus in spite of repeated written instructions Dr. Dharmendra Singh, PGT (Phy) did not take over the aforesaid charge which caused immense loss to the studies of the students. Thus he wilfully & deliberately disobeyed the lawful orders and instructions of his superiors and thereby he contravened Rule-3 (I) (ii) & (iii) of CCS (Conduct) Rules 1964. He has therefore requested himself liable to disciplinary action under CCS (CC&A) Rules 1956.
6. According to the second charge, the Applicant absented himself from duty on 21.11.1997 without making application for leave. The Principal sent a letter to him on 2.11.1998 directing him to report for duty but he failed to do so. Therefore, his absence from duty was treated as wilful and unauthorised with effect from 25.11.1997. The Statement of Imputations of Misconduct with regard to this charge was as under:-
That Dr. Dharmendra Singh, while functioning as PGT (Phy) in the aforesaid Kendirya Vidyalaya is absenting from duty w.e.f. 21.11.97. He has not applied for any kind of leave as such no leave has been sanctioned. Thus he is unauthorisedly absent from duty w.e.f. 21.11.97. The Principal sent a letter to him vide memo no.2-2/C/123/Gen/126,127,128 dated 02.11.98 directing him to report for his duty but he fails to report his duty. Thus this willful absence from duty on his party amounts to unauthorized absence and thereby he contravened Rule (I) (iii) of CCS (Conduct) Rules, 1964. He has therefore, rendered himself liable to disciplinary action under CCS (CC&A) Rules, 1965.
7. According to the third charge the Applicant while working in KV No.2 Khetri Nagar entered into second marriage without divorcing his first wife. A memo in this regard was issued to him on 26.11.1992. In reply, the Applicant informed the Respondents that he entered into the second marriage. This fact was also verified by SSP, Aligarh vide his report dated 25.09.1992. On the basis of the aforesaid acceptance of having entered into second marriage, he was served with a memorandum dated 22.02.1993 considering it as violation of Rule 21 (2) of the CCS (Conduct) Rules, 1964. The Statement of Imputations of misconduct in this regard was as under:-
That Dr. Dharmendra Singh while functioning as PGT (Phy) Kendirya Vidyalaya No.2 Khetri Nagar entered into second marriage without divorcing legally to his first wife. A memorandum was issued vide letter No.PP(D.Singh)/92-93/KVK-2/939-940 dated 26.11.92 regarding his second marriage contracted illegally. In reply to the said memorandum Dr. Dharmendra Singh himself has intimated that he has entered into second marriage. This fact has been further verified and authenticated by a report given by SSP Aligharh dated 25.09.92. On the basis of Dr. Dharmendra Singhs acceptance of having entered into second marriage illegally a memorandum has been issued vide No.11-1/Dis-Pro/92-KVS(JPR)/1982 dated 22.02.93 by the Assistant Commissioner Jaipur Region. Such an act of him is in violation of CCS (Conduct) Rules 21 (2). He has therefore rendered himself liable to disciplinary action under CCS (CC&A) Rules, 1965.
8. There were altogether 14 documents listed by the Respondents to prove the aforesaid three charges. There was also list of 5 witnesses by which the aforesaid Articles of Charge were proposed to be sustained.
9. As far as the first charge was concerned, the Respondents have supplied him the following 9 documents:-
(i) His joining report dated 12.12.1996.
(ii) Office Order dated 28.01.1997 directing the Applicant to take over the charge of Physics Lab issued to him by the Principal, KV No.2, Amritsar Cantt.
(iii) Office Order dated 28.01.1997 signed by board consisting of six teachers stating that the Applicant has not taken over the charge of Physics Lab and stock ledgers of Physics equipment from the date of his joining duty, i.e., 12.12.1996 and the Applicant was creating administrative problems by not taking charge of Physics Lab duly verified by the said board of teachers.
(iv) A report dated 28.01.1997 by the aforesaid board of teachers stating that they went to Physics Lab on 28.01.1997 to persuade the Applicant to take over the charge of the Physics Lab from Smt. Anita Parmar, TGT (Bio) and Mr. Daljeet Singh, Lab. Attendent but he refused to take over the charge on the plea that the things were not in serial order. Again when the board of teachers approached him on the same date at 01.55 p.m. he refused to take over the charge on the ground that the things were not arranged as per his requirement. Thereafter, Smt. Anita Parmar and Mr. Daljeet Singh arranged the things as per his requirement and the committee members requested him to take over the charge but again he refused to take over the charge.
(v) Memo dated 31.01.1997 issued by the Principal, KV No.2, Air Force Station, Amritsar Cantt. to the Applicant to take the charge of Physics Lab. It was also stated therein that he was asked by the Principal verbally many times to take over the charge so that the students do not suffer because of practicals in Physics. On 28.01.1997 he was again asked in writing to take over the charge but he refused. Thereafter, a board of teachers was organized to verify the stock in the Physics Lab but against he refused to take over the charge.
(vi) Office Order dated 14.3.1997 issued by the Principal to the Applicant to take over the charge from Mrs. Anita Parmar, TGT (Bio) and Shri Daljeet Singh, Lab. Attendant and to submit the hading over/taking over report.
(vii) Office Order dated 18.3.1997, again directing the Applicant to take over the charge of Physics Lab and to prepare a list of any deficiency and to sign it by both Mrs. Anita Paramar, TGT (Bio) and Mr. Daljeet Singh, Lab. Attendant.
(viii) Letter dated 31.3.1997 issued by the Principal to Shri S.D. Sharma, Education Officer, KVS stating that the Applicant did not take over the charge in spite of all efforts but he refused to comply with the order.
(ix) Copy of the letter of the Applicant dated 3.4.1998 to the Principal, KV No.2, Air Force Station, Amritsar Cantt. stating that the Principal was creating false evidence against him regarding unauthorized absence as he never intended to absent himself from duty. He has also stated in the said letter that in spite of the order dated 10.12.1997 of the Honble High Court of Delhi in C.M.P. No.10418/1997 in C.W.P. No.3399/1997 he has not been paid any salary/subsistence allowances.
10. As regards the 2nd charge is concerned, following was the only one listed document:-
Letter dated 02.11.1998 from the Principal to the Applicant stating that he was absenting himself from duty with effect from 21.11.1997 and he was directed to join duties immediately to avoid action under CCS (CCA) Rules, 1965.
11. As regards the third charge is concerned, there were the following four listed documents:-
(i) Memorandum dated 22.02.1993 issued to the Applicant by Assistant Commissioner, KVS, Jhalana Dungri, Jaipur stating that he accepted that he entered into second marriage with Sunita Singh D/o Shri Nem Singh R/o Tikrikhurd, Teh-Sikandra Rao, District Aligarh on 05.05.1992 without divorcing his first wife Smt. Sarita Rani. The said memorandum also states that no KVS employee having a spouse living shall enter into, or contract, a marriage with any person. Since the Applicant violated the aforesaid provision, he was liable to be proceeded under CCS (CCA) Rules, 1965.
(ii) The report of the SSP, Aligarh dated 25.09.1992 stating that Smt. Sarita Rani D/o Shri Shankar Pal Singh R/o V-128, Sector-12, Noida District Ghaziabad married the Applicant according to the Hindu Social Customs on 21.2.1985 when he was working as a teacher in KV Khetri Nagar Jhunjhunu Rajasthan. She was residing with Applicants in-laws as well as in her parents home and the Applicant kept on dailli-dallying in taking her with him on the pretext that the house was not available at Khetri Nagar. However, it was confirmed that the Applicant had married Smt. Sunita Singh D/o Shri Nem Singh R/o Tikrikhurd, Teh-Sikandra Rao, District Aligarh according to Hindu Marriage Social Customs without divorcing Smt. Sarita. According to the said report of SSP, Aligarh, he investigated the matter on written and oral directions of the village pradhan and other persons.
(iii) Memorandum dated 26.11.1992 by Dr. M.L. Dhingra, Principal to the Assistant Commissioner, KVS, Jaipur stating that the Applicant had entered into marriage with Smt. Sunita Singh on 5.5.1992 in spite of the fact that he had already one living spouse Smt. Sarita Rani whom he married on 21.2.1985 as verified by Sr. Superintendent of Police, Aligarh. He was requested to submit his reply by 28.11.1992 stating the circumstances compelling him to enter into second marriage with Smt. Sunita.
(iv) The letter dated 28.11.1992 from the Applicant to the Principal, KV No.2 Khetri Nagar states as under:-
I entered into a marriage contract with Sarita D/o Sh. S.P. Singh of Village Mahmadpur (U.P.) on 21.2.85 as per social customs. Soon after marriage, on the forth day of marriage Sarita left my home at Neemkhera (U.P.) saying and breaking the contract of marriage with me openly before my several relatives and went back on 24.2.85 without consent either from me or from my parents. Thus out contract of marriage was rescinded by Sartia as per our social custom. Since 24.2.85 she has been living away. Although my relatives has tried to their best to get the contract of marriage continued but in vain because of refusal of Sarita. By all means the contract of marriage was broken by Sarita finally in 1985 itself. During December 1987 when I was living at Khetri Nagar, it was told to me that in my absence my two relatives again tried in vain and in my absence Sarita was contacted to finally settle the matter of marriage. Again, as it was told she uttered useless words against my relatives and bluntly spoke of breach of contract of marriage by herself after undesirable quarrel with my relatives who once again wanted to settle the matter. After this there was no scope of existence of my contract of marriage with Sarita. The contract of marriage came into existence as per our social customs and as per our customs Sarita rescinded the contract of marriage openly speaking of it as well as by her conduct. Therefore the case of my divorcing her does not arise.
12. The List of Witnesses by whom the articles of charge framed against Dr. Dharmendra Singh, PGT (Phy) are proposed to be sustained were as under:-
(1) Mrs. Anita Parmar, PGT (Bio) Kendriya Vidyalaya No.2 Amritsar.
Sh. Daljit Singh, Lab. Attd., Kendriya Vidyalaya No.2 Amritsar.
Mrs. Seema Mahendru, PGT (Eng), Kendriya Vidyalaya No.2 Amritsar.
Mrs. Kusum Dhawan, PGT (Hindi), Kendriya Vidyalaya No.2 Amritsar.
Dr. Dharmendra Singh, PGT (Phy), Kendriya Vidyalaya No.2 Amritsar.
Sh. Gurpal Singh, Principal, Kendriya Vidyalaya No.2 Amritsar.
Sh. G.S. Gill, Principal, Kendriya Vidyalaya No.1 Amritsar.
Sh. S.D. Sharma, Education Officer, KVS (JR) Jammu.
13. The respondents, thereafter, proceeded to hold enquiry into the aforesaid three charges framed against the Applicant. Shri B.D. Nigam, Principal, KV No.2 Jammu Cantt. was appointed as Inquiry Officer (IO for short) and Shri V.K. Sharma, Principal, K.V., Miran Sahib as Presenting Officer. The IO, vide his letter dated 26.03.1999 informed the Applicant that he will hold the preliminary hearing on 12.04.1999 and directed him to be present along with his Defence Assistant, if any. The Applicant, in his letter dated 6.4.1999 to the Commissioner K.V.S., stated that since 2.3.1996 he was not being paid his salary and allowances and his request to post him in any of the KVS in Delhi for the time being was also still pending. He has also stated that the C.W.P. No.3399/1999 (supra) which has since been transferred to this Tribunal as TA No.1/1999 was still pending. He has, therefore, requested the Disciplinary Authority to stay the enquiry proceedings against him till the aforesaid case before the court is decided. However, the IO insisted that he should be present before him on the next date, i.e., on 26.4.1999. The applicant did not appear on the said date informing the IO, vide his letter dated 22.4.1999, that his representations were still pending with the KVS Headquarters, New Delhi. However, on 02.07.1999, the IO recorded the statements of PWs Mrs. Anita Parmar, TGT (Bio), Mr. Daljeet Singh, Lab. Attendant, Mrs. Seema Mahendru, PGT (Eng), Mrs. Kusum Dawan, PGT (Hindi), Shri Gurpal Singh, the Principal, Shri G.S. Gill, Principal and Shri S.D. Sharma, EO. The Applicant continued with his request for posting him at New Delhi and payment of pay and allowances vide letter dated 16.7.1999 and did not appear in the enquiry proceedings. However, the IO submitted his ex-parte report on 05.7.1999. According to the Respondents, a copy of the same was sent to the Applicant at his latest known address, vide memorandum dated 06.09.1999 directing him to submit his representation, if any, on the enquiry report but the Applicant failed to submit any representation. Thereafter, the Disciplinary Authority issued the order dated 20.09.1999 removing the Applicant from service with immediate effect. The relevant part of the said order reads as under:-
6. AND WHEREAS on considering the records of the case, finding of Inquiry Officer and taking into account all other relevant facts and circumstances, the undersigned is satisfied that said Dr. Dharmendra Singh, while functioning as PGT (Phy.) at KV No. II Amritsar Cantt. has refused to takeover charge of his post, remained unauthorisedly absent from duty and entered into second marriage without divorcing his first wife and sufficient reasons exists for imposing major penalty of removal from service on the said Dr. Dharmendra Singh.
7. NOW, THEREFORE, the undersigned in his capacity as Disciplinary Authority, orders imposition of removal from service upon Dr. Dharmendra Singh, PGT (Phy.), KV No.II, Amritsar Cantt. with immediate effect.
14. Applicant challenged the aforesaid order before this Tribunal vide OA No. 619/2000 and it was heard along with TA No.1/1999 (supra). This Tribunal disposed of the aforesaid OA, vide its order dated 16.7.2001 holding that the Applicant did not make any appeal against the aforesaid order dated 20.09.1999 passed by the Disciplinary Authority and gave him an opportunity to file an appeal, as admissible under the rules. Thereafter, the Applicant made an appeal to the Joint Commissioner (Administration) and the said authority, vide its order dated 14.12.2001, upheld the order of the Disciplinary Authority removing him from service. The Applicant again challenged the aforesaid order, vide OA No. 246/2002 before this Tribunal and Tribunal, vide its order dated 5.9.2003, set aside both the aforesaid orders on the following grounds:-
(i) The Enquiry Officer did not serve the notice to the Applicant.
(ii) The enquiry report was not served upon the Applicant.
(iii) Additional material has been relied upon the Disciplinary Authority to impose the extreme penalty of removal from service without affording an opportunity to the Applicant to rebutt it.
(iv) The Appellate Authority also did not apply its mind.
By the aforesaid order, this Tribunal has also directed the Respondents to reinstate the Applicant in service forthwith but with the liberty to proceed further with the enquiry, if so advised, by placing him under suspension and to resume the enquiry from the stage of furnishing him the enquiry report. Treating the intervening period for the purpose of service benefits including that of back wages was left to be decided by the Respondents in accordance with the rules and instructions.
15. The Respondents challenged the aforesaid order before the Honble High Court of Delhi vide W.P. (C) No.8092/2003 but later on, it was withdrawn by them and they agreed to comply with the directions of this Tribunal. Accordingly, the said Writ Petition was dismissed as withdrawn vide order dated 06.04.2004. Thereafter, the Respondents reinstated the Applicant vide order dated 21.4.2004 and posted him to K.V. Mokama Ghat. They have also decided that the intervening period and benefits including back wages would be decided by the Respondents in accordance with the rules and instructions and would be subject to the outcome of the orders on conclusion of the disciplinary proceedings.
16. Thereafter, the Applicant made a representation on 26.04.2004 to the Respondents to release his salary and allowances from the date of removal to the date of reinstatement, i.e., from 20.09.1999 to 21.4.2004 with interest. He has also requested for arranging early payment of Rs.25,000/- towards transfer TA/DA grant in order to carry out the Respondents order to report to KV Mokama Ghat. However, the Respondents proceeded with the matter and the enquiry report dated 19.07.1999 containing 4 pages had been sent to him on 26.04.2004 at his residential address in New Delhi. According to the said report, since the Applicant did not participate in the enquiry, the IO recorded the submission of prosecution witnesses on 2.7.1999. The statement of another prosecution witness Shri S.D. Sharma was recorded on 5.7.1999. The IO held that first charge stood proved on the basis of the statements given by witnesses No.1, 2, 3, 4, 6 and 7. The second charge was proved on the basis of the statements of witnesses 5 and 6. Again the third charge was also proved on the basis of the documents, namely, the reply of the Applicant dated 28.11.1992 and the report of the SSP, Aligarh (UP) dated 25.9.1992. The relevant part of the said report reads as under:-
After assuming the charge of enquiry officer Sh. V.K. Sharma, Presenting Officer was requested to brief about the charges, and having gone through all relevant papers submitted by Sh. V.K. Sharma (P.O.) Sh. Dharmendra Singh, PGT (Phy) of KV No. 2 was first of all directed to attend the enquiry on 12.04.99 vide letter No. F.9-2/9-KVS(JR)/305 dated 26.03.99, but he did not attend the enquiry on 12.04.99 and sent a letter addressed to the Commissioner KVS New Delhi with a copy to the undersigned requesting for any communication this regard through KVS (HQ) New Delhi only (Annexure 26).
Again he was directed to attend the enquiry on 26.04.99 vide letter No. F.9-2/99-KVS(JR)/10-12 dated 15.04.99 (Annexure 28) but again he did not turn up and sent a letter again requesting for any correspondence through Commissioner, KVS, New Delhi.
To give one more chance he was directed to attend the enquiry on 10.05.99 vide letter No. F.9-2/99-KVS(JR)/2426 dated 28.04.99 (Annex. 31) out this time also he did not turn up.
In consultation with the Presenting Officer Sh. V.K. Sharma it was decided to give him last chance to appear for this enquiry and this time a notice was published in the Indian Express (Delhi Edition on 20.0699 directing him to appear for clipping) but this effort also went in vain and could not bring him for the enquiry.
It was then finally decided to carry on the enquiry proceeding ex-parte and examine the witnesses on 01.07.99 and onward. Subsequently Principal KV No. 2, Amritsar Sh. Gurpal Singh was informed to inform all the witnesses vide letter No. F.9-2/99-KVS(JR)/80-83 dated 14.06.99 to be available on 01.07.99 and onward for the enquiry. Copy of the letter was also sent to Sh. G.S. Gill Principal KV No. 1, Amritsar to be available on 01.07.99 and onward for recording his statement. Copy of this letter was also sent to Sh. Dharmendra Singh, PGT (Phy) for appearing on 01.07.99 and onward.
The enquiry team waited for Mr. Dharmendra Singh PGT (Phy) on 01.07.99 but till evening he did not turn up.
On 02.07.99 the statements of the following witnesses were recorded:-
Mrs. Anita Parmar, TGT(Bio) of KV No.2, Amritsar (Annex.43).
Sh. Daljit Singh, Lab. Attendant of KV No.2, Amritsar (Annex.42).
Mrs. Seema Mahendru, PGT(Eng.) of KV No.2, Amritsar (Annex.41).
Mrs. Kusum Dhawan, PGT(Hindi) of KV No.2, Amritsar (Annex.40).
Sh. Gurupal Singh, Principal of KV No.2, Amritsar (Annex.39) Sh. G.S. Gill, Principal of of KV No.1, Amritsar (Annex.38) Statement of Sh. S.D. Sharma, the then Education Officer KVS(JR) was recorded on 05.07.99 (Annex.37).
After recording the statement of Sh. S.D. Sharma the then Education Officer KVS(JR) Sh. V.K. Sharma, Presenting Officer closed the enquiry because no further witnesses were required to be examined.
Having examined the statement of all the witnesses carefully and thoroughly it is inferred that:
Charges as framed under article No.1 stand proved on the basis of the statements given by the witnesses No.1, 2, 3, 4, 6 and 7.
Charges from the under article No.2 stand proved on the basis of the statement of witnesses No. 5, 6 i.e. of Sh. Gurupal Singh, Present Principal of KV No.2, Amritsar and Sh. G.S. Gill Present Principal of KV No.1, Amritsar and Ex-Principal of KV No.2, Amritsar.
Charges framed under articles No.3 stand proved on the basis of the documents.
Reply of Dr. Dharmendra Singh PGT(Phy) dated 28.11.92 in response to the Memo No. PF(D. Singh/KVK-2/92-93/869 dated 18/19.11.92 and subsequent Memo No.PF(D.Singh) KVK-2/92-93 dated 26.11.92 (Annex.13).
Report of Senior Dupdt. of Police Aligarh (UP) dated 25.09.92.
That Sh. Dharmendra Singh PGT (Phy) actually married to Sunita D/o Sh. Nem Singh R/o Vill Kokri Khurd The. Sinkandra Rao, Distt. Aligarh (UP) without divorcing his first wife Smt. Sarita Rani D/o Sh. Shankar Pal Singh R/o House No. V-128, Sector 12 Noida Distt. Ghaziabad (UP) to whom he had married first on 21.02.85.
With this the final report as above is being submitted on 19.07.99 for information of further action.
17. However, the Applicant, vide his endorsement dated 5.5.2004 on the same letter dated 26.4.2004, returned it to the Respondents (Assistant Commissioner, KVS, Patna) stating that in spite of his request, the Respondents have not paid his salary and also the TA/DA to join at the place of his posting. Applicant again requested the Respondents, vide his letter dated 19.08.2004, to release his payment, as ordered by this Tribunal.
18. However, based on the aforesaid report, the Disciplinary Authority, vide its order dated 03.12.2004, again removed him from service with immediate effect. The Appellate Authority also vide its order dated 20.01.2006, upheld the order of the Disciplinary Authority. The Applicant again challenged those orders of the Disciplinary Authority as well as Appellate Authority before the Tribunal vide OA No. 281/2006 and this Tribunal, vide its order dated 27.7.2006, partly allowed it and set aside the impugned orders. It also observed that both the Disciplinary Authority as well as the Appellate Authority have passed their orders without application of mind. This Tribunal further directed the Respondents to reinstate him in service forthwith. The Tribunal has also directed that the interregnum period from earlier removal in 1999 till the date of reinstatement shall have to be treated as period of suspension with grant of subsistence allowance to the Applicant. It was also directed that the Respondents are at liberty to proceed, if so advised, against the Applicant from the stage of affording an opportunity of defence and thereafter to complete the enquiry. The operative part of the said order reads as under:-
19. Rule 14 (23) of the rules, ibid, obligates upon inquiry officer to record the reasons. The inquiry report shall contain reasons wherein the findings a discussion as to how the charge has been established by weighing prosecution and defence version should be recorded. In laws need to record reasons in the inquiry report is on the premise that the findings in the law developed is that once the inquiry officer has recorded a detailed finding, it is not mandatory for the disciplinary authority to pass a reasoned order and mere agreement with the inquiry report would suffice in law.
20. In the light of the above, the Applicant who has been charge sheeted on three scores of charge, including bigamy, absence and the other ancillary charges of non-joining duty, the inquiry officer in his report merely reiterating the number of witnesses examined held the charge proved. There is no discussion as to how the charge has been proved in the context of the evidence and material brought on record as held by the Apex Court in Anil Kumar Vs. Presiding Officer 1983 SCC (L&S) 813 that in the matter of recording a finding by the inquiry officer which he records while functioning as a quasi judicial authority should indicate application of mind and recording of reasons as to how the evidence brought against the applicant has been overweighed by the prosecution. Even in a case of ex-parte inquiry, there is no dispensation from discharging this mandatory compliance by the inquiry officer and an enquiry report which does not discuss the evidence and records its findings on each article of charge is a non-specific but abruptly inconclusive finding which in that case is not safe to rely on such a finding to impose penalty upon a Government servant.
21. In such view of the matter when the Apex Court ruled in catena of cases that whether the finding or the order of the disciplinary authority is perverse or not, the only laid down test is of a reasonable common prudent man and it is viewpoint as to the finding. From that point of view as well, we find that no common prudent reasonable man would have ever thought-of this finding as a reasoned finding recorded by the inquiry officer. Accordingly, we have no hesitation to hold that even in ex-parte proceedings, when the applicant has not been afforded an opportunity by way of notices sent to him by the inquiry officer asking him to produce his defence etc., he has been deprived of a reasonable opportunity to defend which ha snot only prejudiced him but constitutes a violation of substantive procedure of rules which is in contravention of principles of natural justice.
22. In the light of the above, we are of the considered view that the order passed by the disciplinary authority cannot be sustained in law. Accordingly, we partly allow this OA and set aside the impugned order. As a result thereof, the applicant would be reinstated in service forthwith. The interregnum period of from earlier removal in 1999 till the date of reinstatement shall have to be treated as the period of suspension with grant of subsistence allowance to the applicant. However, the respondents are at liberty to proceed, if so advised, against the applicant from the stage of according an opportunity of defence and thereafter to complete the enquiry. The outcome of the inquiry shall govern the further progression of the consequential benefits. It is, however, needless to mention that in the even the decision to resume the inquiry is taken by the respondents, utmost co-operation of applicant is required. The benefits would have to be accorded to the applicant, as directed above within a period of three months from the date of receipt of a copy of this order. No costs.
19. The Respondents challenged the aforesaid order before the Honble High Court of Delhi vide W.P. (C) No.16390/2006 and it was disposed of, vide order dated 21.7.2007 directing the Respondents to reinstate the Applicant within a weeks time. There were also further directions to both the Applicant as well as the Respondents. The relevant part of the said order reads as under:-
We have heard learned counsel for the parties, considered matter and also perused the earlier orders passed by our predecessor bench.
One of the contention raised by the petitioners is that the respondent has been evading service and avoiding the inquiry proceedings and was not willing to participate in the inquiry proceedings.
Upon hearing both the counsel and respondent, who is present in Court, the following consent order is passed:-
(i) The petitioners would within a week from today appoint an Inquiry Officer and also reinstate the petitioner.
(ii) The evidence already recorded by the petitioners in the previous proceedings would be taken as evidence led for the purpose of inquiry. The respondent has no objection to the same.
(iii) Respondent hereby withdraws all his legal and other objections to the inquiry being conducted and undertakes to co-operate fully in the inquiry proceedings.
(iv) Respondent would be at liberty to cross-examine the witnesses of the petitioner. Respondent would lead and conclude its evidence within 2 months from the date of completion of the cross-examination of petitioners witnesses. Respondent would bring his evidence at his own responsibility. Petitioner would be entitled to lead evidence in rebuttal.
(v) The Inquiry Officer shall issue notice for hearing to the respondent at the address contained in the petition. Learned counsel for the respondent states notice may be served through respondents counsel and the same shall be treated as proper service on the respondent for further proceedings.
(vi) The petitioners shall reinstate the respondent within a week. The subsistence allowance, if not already paid to the respondent, shall be paid within a week. Entitlement to pay and allowances shall be decided by the disciplinary authority upon conclusion of the inquiry proceedings.
(vii) The respondent has undertaken to strictly abide by the aforesaid consent terms and shall fully co-operate in the inquiry proceedings.
(viii) The petitioners shall also give necessary leave, as required by the respondent, to defend his case as per rules.
The writ petition stands disposed of in the above terms.
20. Based on the aforesaid order of the Honble High Court the Respondents reinstated the Applicant in service vide order dated 04.06.2007 and posted him to KV No.2. Udhampur with immediate effect. They have also appointed Shri B.D. Sharma, Education Officer, KVS Regional Office, Jammu as IO to enquire into the charges framed against the Applicant from the stage of cross examination of the prosecution witnesses and Shri A.S. Gill, Principal, KV No.3 as the Presenting Officer. The Applicant immediately wrote to the Respondents that in spite of the directions of the Honble High Court he has not been paid the subsistence allowance with effect from 20.09.1999 to till that date. He was also not given the TA/DA as admissible under the rules to join the new place of posting. However, the IO proceeded ahead to conduct regular enquiry into the matter. The Applicant, therefore, requested the IO to allow him to engage Shri R.G. Nangia as his Defence Assistant as he has already given his consent on 23.6.2007. However, the IO, vide his Daily Order Sheet No.2 dated 28.6.2007, rejected his request stating that Shri Nangia being a terminated employee of the KVS cannot be allowed to be appointed as his Defence Assistant but the Applicant informed the IO that Shri Nangia has been permitted by the Honble High Court of Delhi to act as a Defence Assistant in an enquiry being conducted against another KVS employee in Delhi Region. Therefore, the IO, vide his Order Sheet No.3 dated 02.07.2007, directed the Applicant to produce the order of the High Court in support of his claim by 07.07.2007. As the Applicant expressed his inability to produce the said order within that short span of time, he requested the IO to grant him at least 20 days time to produce the same. Accordingly, the IO adjourned the matter to 24.07.2007. The IO also, vide its letter dated 24.07.2007, sought clarifications from KVS Headquarter as to whether Shri Nangia could be permitted to act as the Defence Assistant of the Applicant. Again the Applicant, vide his letter to IO dated 26.10.2007 extracted the relevant part of order of the High Court in W.P. (C ) No. 10736-37/2005 permitting Shri Nangia to act as a Defence Assistant. Later, he has also produced the copy of the order of the High Court dated 23.5.2007 in the aforesaid Writ Petition and a copy of the Daily Order Sheet dated 22.6.2007 in another departmental case where Shri Nangia was appearing on behalf of the Charged Official there. He has, therefore, again requested the IO to permit Shri Nangia to act as his Defence Assistant and to intimate him the next date of hearing officially as required under the rules. Further, he has requested the IO to ensure that the subsistence allowance as ordered by the High Court is paid to him within a weeks time.
21. Meanwhile, Shri B.D. Sharma, IO retired on superannuation on 29.02.2008 and showed his inability to continue as IO. Accordingly, the Disciplinary Authority, vide order dated 28.03.2008, appointed one Shri S.K. Mengi as the new IO. Vide Order Sheet dated 29.09.2008, Shri Mengi fixed the next date of hearing as 20.10.2008 again asking him to substantiate his stand on nomination of Shri Nangia as Defence Assistant. The Applicant submitted that he had already produced the documentary evidence with regard to his nomination of Shri Nangia to the earlier IO on 26.10.2007. However, the IO adjourned the hearing for 03.11.2008. But Shri S.K. Mengi expired on 3.11.2008 and in his place Shri S.C. Khajuria, Education Officer was appointed as the IO. He has taken up the hearing on 22.01.2009. The IO in consultation with the CO (Applicant herein) agreed to conduct the cross examination of 8 witnesses on two different dates. However, the IO asked him to give the name and all other particulars of the Defence Assistant proposed to be appointed by him. He again informed the IO that his Defence Assistant would be Shri R.G. Nangia. However, according to the IO, the Applicant failed to produce the documentary proof that Shri Nangia was allowed by the High Court of Delhi to produce the same for over 1.1/2 years. He has, therefore, asked the CO to propose some other name as his Defence Assistant and the enquiry was adjourned to 13.02.2009 stating that the issue regarding engaging Shri R.G. Nangia has already been resolved by the former IOs Shri B.D. Sharma and Shri S.K. Mengi. Therefore, concluding the enquiry, as seen from the Order Sheet dated 13.02.2009, the Applicant was asked to cross examine the three PWs produced by the PO. However, no cross examination was held as the Applicant still insisted to appoint Shri Nangia as his Defence Assistant. Accordingly, none of the prosecution witnesses produced during the enquiry proceedings were cross examined by the Applicant. Thereafter, the Applicant was directed to submit his brief. But the Applicant, vide his letter dated 16.02.2009, addressed to the Disciplinary Authority raised a number of objections about the manner in which the enquiry was conducted and concluded. Later on, the IO forwarded a copy of the brief submitted by the PO to the Applicant. Applicant submitted his reply to the same vide his letter dated 25.04.2009 pointing out various alleged lacunae. Since the Applicant did not submit his written brief, the IO, vide his letter dated 17.04.2009, gave the final opportunity to him to submit the same as the Presenting Officer has already submitted his written brief on 28.02.2009 itself.
22. The PO in his written brief has stated that Shri R.G. Nangia was not permitted to be appointed as defence assistant of the Charged Official as per KVS Rules because Shri R.G. Nangia was neither serving or retired KVS employee and he was removed from the service of KVS w.e.f. 09.11.1999 by the Assistant Commissioner, KVS Delhi Region. Therefore, the IO once again directed the charged official to submit the name, designation and complete address of a serving or retired KVS employee with his written willingness to act as his Defence Assistant. Inquiry Officer has also, vide his letter No.F.EO-I/Sng.DP/DS/2007 (JR) dated 24.07.2007, requested the Joint Commissioner (Admn) KVS (Hqrs) New Delhi to issue necessary clarification/direction on the above stated issue of permitting Shri R.G. Nangia [terminated under Article 81(d) of Education Code by the Assistant Commissioner, KVS Regional Office, Delhi] to act as Defence Assistant in the enquiry. The Joint Commissioner (Admn) and CVO, KVS (Hqrs) New Delhi vide KVS (Hqrs) letter No.F.11-33/2-7-KVS (Vig) dated 31.8.2007 addressed to the Assistant Commissioner of all Regional Office of KVS has clarified that the employees removed/dismissed from services through the process of the CCS (CCA) Rules, 1965 or terminated under the provisions of Article 81(b)/81(d) of Education code for KV are not permitted to act as Defence Assistant. He has also submitted that that the cross-examination of the witnesses produced by the Presenting Officer in the case was taken up on 13.02.2009 and the first witness produced was Smt. Kusum Dhawan, Vice Principal, KV, JNU New Mehrauli Road, New Delhi, who was working as PGT (Hindi) in KV No.2 AFS Amritsar w.e.f. October, 1993 to April, 2008. CO was asked to cross-examine the witness by the IO but Charged Official asked the IO to call his defence Assistant Mr. R.G. Nangia. The CO also refused to go ahead with the cross-examination of the other witnesses viz. Smt. Anita Parmar, TGT (Bio) KV No.1 Amristar (Formerly in KV 2 Amritsar w.e.f. December, 1987 to April, 2003). Mr. Daljeet Singh, Lab. Attendant, KV No.3 Amritsar (Formerly in KV No.2 w.e.f. August, 1988 to 31.03.2007). However, the Applicant still insisted that it is only Shri R.G. Nangia who should be permitted to be his Defence Assistant and only he (Mr. Nangia) shall cross examine the witness. But the Inquiry Officer informed to the Charged Official the request of Mr. R.G. Nangia to be his Defence Assistant has already been denied by the Inquiry Officer on 14.02.2008. Hence, he should have chosen another one in the due course but he did not exercise his option, even after one year and still insisting that only Shri R.G. Nangia should be allowed to be the Defence Assistant leads to the conclusion that you do not want the inquiry to go further. Therefore, the Inquiry Officer directed the Prosecution Witnesses to give written statements, if any. Hence, the Presenting Officer in the case was directed to submit the brief of the case within 15 days and the Applicant to submit his brief to the Inquiry Officer in another 15 days.
23. The IO has finally submitted his report (undated) and a copy of the same was forwarded to the Applicant by the Disciplinary Authority vide memorandum dated 18.6.2009.
24. As far as the Article I of the charge is concerned, it has been proved according to the aforesaid report. The conclusion of the said report is as under:-
Conclusion :
On the careful perusal of the evidences produced by the Presenting Officer and the Charged Official and the examination Chief of the prosecution witnesses produced by the Presenting Officer in support of the Article I of the Charge Sheet No.F9-99/KVS(JR) dated 17-02-1999.
Further the failure of the C.O to cross examine of the said prosecution witnesses (despite having received the statement of witnesses, through DOS dated 20-10-2008 from the Inquiry Officer) produced on 13.02.2009, proves beyond doubt that the Charged Official had nothing to produce the innocence of the said charge. Further, Sh. Dharmendra Singh, PGT (Physics) Kendriya Vidyalaya No.2 Udhampur, while functioning as PGT(Phy) w.e.f. 12-12-96 to 20-11-97 in Kendriya Vidyalaya No.2 A.F.S. Amritsar Cantt. did not take over the charge of Physics lab and stock ledgers along with stock in spite of office order and memorandum issued to him by the Principal Kendriya Vidyalaya Sangathan (Jammu Region) Jammu Sh. S D Sharma to take over the charge, during preliminary enquiry held on 14-10-97 and he thus wilfully and deliberately disobeyed the lawful orders and instructions of his superiors which amounts to misconduct and dereliction of duty and thereby he contravened Rule 3(I), (II) and (III) of CCS (Conduct) Rules, 1964. He has therefore rendered himself liable to disciplinary action under CCS(CC&A) Rules, 1964. He has therefore rendered himself liable to disciplinary action under CCS (CC&A) Rules, 1965. Hence, the Article I of the Charge Sheet No. F.9/99-KVS(JR)/11870 dated 17-02-1999 is proved, beyond doubt.
25. With regard to Article II also the IO held that the same was proved beyond any doubt. The relevant part of the said conclusion is as under:-
Conclusion Careful examination of the evidences produced by the Presenting Officer and C.O. and the Examination inChief of the prosecution witnesses recorded in the inquiry, proves beyond doubt that Dr. Dharmendra Singh while functioning as PGT (Phy) in the Kendriya Vidyalaya No.2, Amritsar was absenting from duty w.e.f. 21-11-97. He had not applied for any kind of leave as such and no leave had been sanctioned. Thus he was unauthorisedly absent from duty w.e.f. 21-11-97. The principal sent a letter to him vide memo no. 2-2/C/123/Gen/126,127,128 dated 2-11-98 directing him to report for his duty but he failed to report his duty. Thus this wilful absence from duty on his part amounted to unauthorized absence and thereby he contravened Rule (i), (iii) of CCS (Conduct) Rules, 1964. He had therefore rendered himself liable to disciplinary action under CCS(CCA) Rules, 1965. Thus Article II of the Charge Sheet No. F.9/99-KVS(JR)/11870 dated 17-02-1999 is proved doubt.
26. As regards Article III is concerned, the same was also proved and the relevant part of the said report is as under:-
Evidences in Support of Article III:
The State EXHIBITs number Page 11: Letter No. II-I (Dis-pro)/92-KVS (JPR/9982 dated 2-2-93 Page -12: Inquiry report from SSP Aligarh (HindiVersion) Page -13: Letter No. PP(D.Singh)/92-93/KVS-2/939-940 dated 26-11-92 (Memorandum) and Reply of Dr. Dharmendra Singh PGT (Phy) in response to letter No. PP(D.Singh)/92-93/KVS-2/939-940 dated 26-11-92 (copy attached) proves the article 3 as under.
A memorandum was issued vide letter No. PP(D.Singh)/92-93/KVK-2/939-940 dated 26-1192 (State EXHIBIT 13 (Annexure III) of charge sheet to Dr. Dharmendra Singh PGT (Phy) he entered into second marriage without divorcing the first wife.
In reply to the said memorandum Dr. Dharmendra Singh PGT (Phy) himself accepted of having entered into second marriage illegally.
SSP Aligarh vide his report dated 25-9-92 (State EXHIBIT 12) (Annexure III) of charge sheet, has clearly mentioned that Sh. Dharmendra Singh without divorcing Smt. Sartia has entered into a second marriage on 05-05-92 with Smt. Sunita D/o Shri Nem Singh residence of Tikrikhurd. The. Sikundrarada Dist Aligarh with full hindu customs.
A memorandum was issued vide No.II-I/Dis-Pro/92-KVS(JPR)/1982 dated 22-2-93 by the Assistant Commissioner Jaipur Region which reads with reference to his representation dated 28-11-92 forwarded by the Principal, Kendriya Vidyalaya No.2 Khetri Nagar vide letter No (DS) 92-93/KVK-2/1052, dated 18-12-98, Shri Dharmendra Singh, PGT (Phy) has accepted that he has entered into second marriage with Sunita Singh D/o Shri Nem Singh, residence of Tikrikhurd, Teh Sikundrarada, on 05-05-92 without divorcing first wife Smt. Sarita Rani, Residence of V-128, Sector-12, Noida-201301/sub Rule-2 of Rule 21 of CCS (Conduct) Rules 1964, extended to KVS employee. EVIDENCES FROM THE DEFENCE No evidence or witness was produced by the C.O to prove his innocence of the Article III of the Charged Sheet No.F.9/99-KVS(JR)/11870 dated 17-02-1999.
CONCLUSION This is open and a shut case, since the individual Sh. Dharmender Singh himself has accepted in his reply to the Principal, KV, No.2, Khetrinagar, dated 28-11-1992 in reply to Memorandum issued vide letter No. PP(D.Singh)/92-93/LVK-2/939-940 dated 26-11-1992 (State Exhibit 13, Annexure III) Sh. Dharmendra Singh has accepted that he has entered into second marriage with Sunita Singh D/o Sh. Nem Singh resident of Tikrikhurd, Teh Sikundrarada, on 05-05-92 without divorcing first wife Smt. Sarita Rani, Residence of V-128, Sector-12, Noida-2013011.
SSP Aligarh vide his report dated 25-9-92 (State EXHIBIT 12) (Annexure III) of chare sheet, has clearly mentioned that Sh. Dharmendra Singh without divorcing Smt. Sarita has entered into a second marriage on 05-05-92 with Smt. Suita D/o Shri Nem Singh residence of Tikrikhurd, Teh Sikundrarada Dist Aligarh with full hindu customs, in violation of sub rule -2 of Rule 21 of CCS (Conduct) Rules 1964 extended to KVS employee.
Thus Sh. Dharmendra Singh, PGT (Phy) while functioning as a PGT (Phy) Kendriya Vidyalaya No.2 Khetri Nagar entered into second marriage without divorcing legally to his first wife. A memorandum was issued vide letter No. PP(D.Singh)/92-93/KVK-2/939-940 dated 26-11-92 regarding his second marriage contracted illegally. In reply to the said memorandum Dr.Dharmendra himself had intimated that he had entered into second marriage. This fact had been further verified and authenticated by a report given by SSP Aligarh dated 25-9-92. On the basis of Dr. Dharmendra Singhs acceptance of having entered into second marriage illegally a memorandum had been issued vide No.11-1/Dis-Pro/92-KVS(JPR)/1982 dated 22-2-93 by the Assistant Commissioner Jaipur Region. Such an act of his is in violation of CCS (Conduct) Rules 21(2).
Thus Article III of the Charged Sheet No. F.9-/99-KVS(JR)/dated 17-02-1999 is proved beyond doubt.
27. The Applicant made a detailed representation dated 6.7.2009 against the aforesaid report of the Enquiry Officer to the Disciplinary Authority and the Disciplinary Authority, after consideration of the IOs report as well as the aforesaid representation made by the Applicant, dismissed him from service vide its order dated 11.8.2009. The Disciplinary Authority in its order traced the various events for issuing the charge sheet on 17.2.2009. The relevant part of the said order reads as under:-
The Charged Official submitted his joining report to Principal KV2 Amritsar on 12.12.1996. On the same application Dr. Dharmendra Singh was permitted to join the duties with effect from 12.12.1996 by the Principal KV-2 Amritsar. On the same application Principal KV-2 mentioned a note for Shri Dhramendra Singh PGT (Phy) to take over the charge of the Physics Lab immediately. LDC KC2 Amritsar reported to the Principal that Shri Dhramendra Singh PGT (Phy) has refused to note the notice. On the same page Lab Attendant Shri Daljeet Singh also reported on 20.12.1996 that Shri Dharmendra Singh PGT (Phy) is not taking the charge of the Physics Lab. Principal KV2 Amritsar again on 28.01.1997 vide letter number 2-2/C/19/Gen through office order directed to Shri Dhramendra Singh PGT (Phy) to take charge of Physics Lab along with the stock register from Shri Daljeet Singh Lab Attendant today positively, i.e., on 28.01.1997 and completion report should be submitted to the principal on the 28.01.1997 cease hours. Principal KV2 through office order number 2-2/C/20/Gen dated 28.01.1997 constituted a board consisting of following members to verify the stock register as well as physics equipments and in their presence to hand over equipments and ledgers today on 28.01.1997 to Shri Dhramendra Singh PGT (Phy). Members of the board were:-
1. Mrs. Seema Mahindru PGT (Eng)
2. Mrs. Brij Bala Singh PGT (Chem)
3. Mrs. Kusum Dhawan PGT (Hindi)
4. Mr N.K. Narad Music Teacher
5. Shri Dilbag Rai LDC
6. Shri Sunil Kumar Jha Skt The board constituted by the Principal KV2 Amritsar vide reported vide their letter number 2-2/C/-/Gen dated 28.01.97 that Committee members of the board went to Physics lab at 12.05 PM on 28.01.97 to peruse Shri Dhramendra Singh PGT (Phy) to take over the charge of Physics Lab from Mrs. Anita Parmar TGT (Bio) KV2 Amritsar and Mr. Daljeet Singh Lab. Attd. KV2 Amritsar but Shri Dhramendra Singh PGT (Phy) refused to take over the charge on the plea that things (Article) of equipment were not in serial order. At 01.35 PM the board member went to the Physics lab but Shri Dhramendra Singh PGT (Phy) refused again to take over the charge unless the things were arranged the things as per his requirements. Mrs. Anita Parmar and Mr. Daljeet Singh arranged as per his requirements on 30.01.97 the committee members again requested Shri Dhramendra Singh PGT (Phy) to take over the charge as the things had already been arranged as per his requirement. Shri Dhramendra Singh PGT (Phy) again refused to take over the charge even after the persuation by the board members for 1= hours. So Board members tried their level best on 28.01.97 to 30.01.97 to persuade Shri Dhramendra Singh PGT (Phy) but the charged official refused every time on one pretext or the other to take over the charges from Mrs. Anita Parmar KV2 Amritsar and Mr. Daljeet Singh LA KV2 Amritsar. A memorandum by the Principal KV2 Amritsar number 2-2/C/22/Gen dated 31.01.97 was issued to Shri Dhramendra Singh PGT (Phy) directing to take over the charge failing which a disciplinary action will be taken against him as per CCS (CCA) Rule 1965 but he did not obey the written instructions of the Principal. Principal GS Gill KV2 Amritsar vide letter number 2-2/C/62/Gen dated 14.03.97 again requested Shri Dhramendra Singh PGT (Phy) to take over the charges of the physics lab, but in vain. In the mean time the matter was reported to Assistant Commissioner KVS RO Jammu, Deputy Commissioner (Admin) KVS New Delhi and Chairman VMC KV No.2 Air Force Amritsar Cantt. vide and matter was reported to Inquiry Officer/Education Officer KVS JR Jammu. Principal KV2 Amritsar through letter number 2-2/C/64/Gen Dated 18.03.97 again directed Shri Dharmendra Singh PGT (Phy) to take the charge of Physics Lab with the instruction to make a list of any deficiency if exist and next necessary action will be taken after handing and taking over the charge of Physics Lab, but in vain. The C.O. failed to provide any evidence/exhibit to prove his innocence of the Article I of the said charge sheet No.F.9-99/KVS(JR) dated 17.02.1999. Despite CO having been given ample opportunities (03 times) to submit his brief after having received the brief of the Presenting Officer of the above said Inquiry.
It is stated that on careful examination of the evidences produced by the Presenting Officer and C.O. and the Examinationin Chief of the prosecution witnesses recorded in the Inquiry, proves beyond doubt that Dr. Dharmendra Singh while functioning as PGT (Phy) in the Kendriya Vidyalaya No.2, Amritsar was absenting from duty w.e.f. 21.11.97. He had not applied for any kind of leave as such and no leave had been sanctioned. Thus he was unauthorisedly absent from duty w.e.f. 21.11.97. The Principal sent a letter to him vide memo No.2-2/C/123/Gen/126, 127, 128 dated 02.11.98 directing him to report for his duty but he failed to report his duty. Thus this wilful absence from duty on his part amounted to unauthorized absence and thereby he contravened Rule (i), (iii) of CCS (Conduct) Rules, 1964. He had therefore rendered himself liable to disciplinary action under CCS (CCA) Rules, 1965. Thus Article II of the Charge Sheet No. F.9-99-KVS(JR)/11870 dated 17.02.1999 is proved, beyond doubt.
It is a fact and an open and a shut case, since the individual Shri Dharmendra Singh himself has accepted in his reply to the Principal, KV, No.2, Khetrinagar, dated 28.11.1992, in reply to Memorandum issued vide letter No.PP(D.Singh)/92-93/LVK-2/939-940 dated 26.11.1992. Shri Dharmendra Singh has accepted that he has entered into second marriage with Sunita Singh D/o Shri Nem Singh resident of Tikrikhurd, Teh Sikundrarada, on 05.05.1992 without divorcing first wife Smt. Sarita Rani, Residence of V-128, Sector-12, Noida-201301. SSP Aligarh vide his report dated 25.09.92 of charge sheet, has clearly mentioned that Shri Dharmendra Singh without divorcing Smt. Sarita has entered into a second marriage on 05.05.92 with Smt. Sunita D/o Shri Nem Singh residence of Tikrikhurd, Teh. Sikundrarada Dist Aligarh with full hindu customs, in violation of sub rule-2 of Rule 21 of CCS (Conduct) Rules 1964 a PGT (Phy) Kendriya Vidyalaya No.2 Khetri Nagar entered into second marriage without divorcing legally to his firs wife. A memorandum was issued vide letter No.PP(D.Singh)/92-93/KVK/939-940 dated 26.11.92 regarding his second marriage contracted illegally. In reply to the said memorandum Dr. Dharmendra himself had intimated that he had entered into second marriage. This fact had been further verified and authenticated by a report given by SSP Aligarh dated 25.09.92. On the basis of Dr. Dharmendra Singhs acceptance of having entered into second marriage illegally a memorandum had been issued vide No.11-1/Dis-Pro/92-KVS(JPR)/1982 dated 22.02.93 by the Assistant Commissioner Jaipur Region. Such an act of his is in violation of CCS (Conduct) Rules 21 (2). Thus Article III of the Charged Sheet No.F.9-99-KVS(JR) dated 17.02.1999 is proved beyond doubt.
And whereas in view of the above mentioned facts, records of the Disciplinary Case file and submissions made by the Charged Official in his submissions dated 06.07.2009 and rules on the subject I agree with the Inquiry Officer in entirely that each of the three charges are proved beyond doubt. I further observe that his misconduct in each case are of severe nature and his indulgence in his second marriage without obtaining legal divorce from his first wife is unconstitutional and also that he violated Rule 3(i) (ii) & (iii) and Rule 22(2) of the CCS (Conduct) Rules 1964 keeping in view the proven misconduct in totality of the matter, his continuance would be prejudicial to good order and discipline in the Kendriya Vidyalayas.
Now, therefore, the undersigned being the competent Disciplinary Authority and after careful consideration in the totality of the case and on consideration of the submissions made by the Charged Official dated 06.07.2009 and after giving basic Principles of natural justice that ends of justice and after due application of mind and in terms of Rule 11 of CCS (CCA) Rules 1965 is hereby constrained to award a penalty of dismissal from service which shall ordinarily be a disqualification for future employment under the Government upon Dr. Dharmendra Singh, PGT (Phy) Kendriya Vidyalaya No.2, Udhampur with immediate effect. The intervening period of suspension shall be treated as dies-non for all purposes.
28. The Applicant made a detailed appeal dated 18.8.2009 against the order of the Disciplinary Authority dated 11.8.2009. Since the Appellate Authority did not take any action on it, he filed a supplementary appeal on 27.12.2009. Again, when no action was taken, he approached this Tribunal, vide OA No. 1401/2010, seeking direction to quash and set aside the impugned charge sheet dated 17.02.1999 and penalty order dated 11.08.2009. This Tribunal disposed of the same vide order dated 7.5.2010 with a direction to the Respondents to consider the pending statutory appeal and dispose of the same by reasoned and speaking order within a period of 2 months. As the said order was not complied with, the Applicant filed CP No.608/2010. However, during the pendency of the same, the Appellate Authority issued its order on 13.09.2010 rejecting his appeal. Its relevant part is as under:-
The Charged Official himself has accepted in his reply to the Principal, KV, No.2, Khetrinagar, dated 28.11.1992, in reply to Memorandum dated 26.11.1992 (State Exhibit 13, Annexure III). Shri Dharmendra Singh has accepted that he has entered into second marriage with Sunita Singh D/o Nem Singh r/o Tikrikhurd The Sikundrarada, on 05.05.1992 without divorcing first wife Smt. Sarita Rani Residence of V-128, Sector-12, Nodia-201301. SSP Aligarh vide his report dated 25.9.1992 (State Exhibit 12)(Annexure III) of charge sheet, has clearly mentioned that Shri Dharmendra Singh without divorcing Smt. Sarita has entered into a second marriage on 5.5.1992 with Smt. Sunita D/o Shri Nem Singh r/o Tikrikhurd, Teh. Sikundrarada Dist Aligarh with full Hindu customs, in violation of sub-rule (2) of Rule 21 of CCS (Conduct) Rules, 1964 extended to KVS employee. Thus Shri Dharmendra Singh, PGT (Phy.) while functioning as a PGT (Phy) KV No.2 entered into second marriage without divorcing legally his first wife. A memorandum was issued vide letter No.PP(D. Singh)/92-93KVK-2/939-940 dated 26.11.1992 regarding his second marriage contracted illegally. In reply to the said memorandum Dr. Dharmendra himself had intimated that he had entered into second marriage. This fact had been further verified and authenticated by a report given by SSP Aligarh dated 25.9.1992. On the basis of Dr. Dharmendra Singhs acceptance of having entered into second marriage illegally.
There were no two different briefs of the Presenting Officer. The brief was only one which was not signed by mistake. The same was signed subsequently and was sent to the charged official for his written brief.
There is no serious deficiencies in the enquiry report. The inquiry has been conducted strictly as per CCS (CCA) Rules, 1965.
Inquiry Report has been submitted by the IO strictly as per CCS (CCA) Rules, 1965. The Inquiry Report contains analysis of article of charges with evidences, evidences from the State Exhibits, Evidences from the Examination-in-Chief, Evidences from the Defence Side, Cross examination of the Prosecution Witness and conclusion thereof which is totally in accordance with CCS (CCA) Rules, 1965.
It is the disciplinary authority who has sent the Inquiry Report submitted by the Inquiry Officer. Apart from this the IO has already given to the CO the Daily Order Sheet of each date of hearing which cannot be denied by him.
It is stated that on the careful perusal of the evidences produced by the Presenting Officer and the CO and the examination-in-Chief of the prosecution witnesses produced by the Presenting Officer in support of the Article I of the Charge Sheet dated 17.02.1999. Further the failure of the CO to cross examine of the said prosecution witnesses (despite having received the statement of witnesses, through DOS dated 20.10.2008 from the IO) produced on 13.2.2009, proves beyond doubt that the CO had nothing to produce in his defence of the said charge. Further, Shri Dharmendra Singh, PGT (Physics), KV No.2 Udhampur while functioning as PGT (Phy) w.e.f. 12.12.1996 to 20.11.1997 in KV No.2 AFS Amritsar Cantt. did not take over the charge of Physics Lab and stock ledgers along with in spite of Office Order and memorandum issued to him by the Principal KV No.2 Amritsar and instructions of Education Officer of KVS (Jammu Region) Jammu Shri .D. Sharma to take over the charge, during preliminary enquiry held on 14.10.1997 and he thus wilfully and deliberately disobeyed the lawful orders and instructions of his superiors.
As the charge sheet has been issued strictly in accordance with CCS (CCA) Rules, 1965 cannot be quashed and set aside and the departmental proceedings already initiated against the CO is legal and not null and void.
While going through the case file, it can be observed that the article of charges I relate to the disobedience of the order of the Principal to take over the stores of Physics Lab and Article-II relate to the unauthorised absence from 21.11.1997. Whereas, the Article III is the incident, i.e., entering into the second marriage with Sunita Singh d/o Sri Nem Singh without divorcing his earlier wife Sarita Rani d/o Shri S.P. Singh which was happened during 1992 for which disciplinary action should have been taken during 1993-94 at least. As per the application for admission to KV, Master Bhupendra Pratap Singh has born to him and Smt. Sunita Singh on 10.05.1994.
The undersigned has considered all the facts/evidence on record, submission made by the appellant in his appeal dated 18.8.2009 and after due application of mind has not reached to the conclusion that the appeal of Shri Dharmender Singh is devoid of merit and does not require any interference with the penalty order dated 11.08.2009 of the Disciplinary Authority. Accordingly the appeal of Shri Dharmendra Sigh, Ex.PGT (Phy.) KV No.2 Udhampur stands disposed off in compliance to the Honble CAT, Principal Bench Order dated 07.05.2010 in OA No.1474/2010.
29. The aforesaid supplementary appeal was also dismissed by a separate order dated 4.11.2010.
30. The Applicant, therefore, filed this OA on 02.12.2010 before this Tribunal seeking the following reliefs:-
(i). To quash and set-aside the impugned charge sheet dated 17.02.99, penalty order dt. 11.08.09 passed by Disciplinary Authority and the orders dated 13.09.2010 and 04.11.2010 passed by the Appellate Authority.
(ii). To direct the respondents to reinstate the applicant in the service with all consequential benefits including arrears of pay and promotional benefits.
(iii). To declare the departmental proceedings illegal and contrary to order dated 17.02.99.
(iv). To direct the respondents for payment of salary w.e.f. 02.03.1996, 39 days of salary w.e.f. 25.09.91 to 03.11.91, payment of salary w.e.f. 01.02.1997 onward, payment of salary w.e.f. 14.08.09 onwards, till date of reinstatement, payment of TA/DA bill and medical bill and difference of arrears of annual increments since year 1992 to 1996 as per 5th CPC and 6th Pay Commission since 2006.
(v). Directing the respondent to pay a compensation of Rs.2,00,000/- to the applicant on account of mental tension, agony and harassment suffered by the applicant.
(vi). Any other or further order that may be deemed just and proper in the facts & circumstances of the case may also be passed by the Honble Tribunal in favour of the applicant and against the respondent in the interest of justice and equity.
31. The various grounds taken by the Applicant to challenge the impugned orders are the following:-
(i) The Enquiry Officer mala fidely rejected his request to engage the Defence Assistant of his choice and as a result his right to cross-examine the prosecution witnessses has been denied. In this regard, he has relied upon the judgment of the Honble High Court of Delhi in Jiwan Singh Vs. Administrator U.T. (Delhi) 1985 (1) SLR 781. The relevant part of the said judgment reads as under:-
In my view, if there was no circular to that effect, one of the well-accepted principles of natural justice requires that a delinquent official, if he so desire, be allowed the assistance of another official of his choice to represent him in the enquiry.
(ii) None of the charges mentioned in the charge sheet has been proved. As regards the Charge-I is concerned, he has stated that the order of the Principal to take charge of the laboratory is contrary to the Annexure A-13 KVS Instructions which, inter alia, provides as under:-
Laboratory Assistant is responsible for maintenance of proper account of the stock in use. Any accidental damage or loss of apparatus must be immediately brought by him to the notice of the teacher incharge. The Laboratory Assistant is also responsible for the general care of the apparatus. Any damage/loss caused to the apparatus has to be made good by him. As far as the second charge that the Applicant was absenting from duty from 21.11.1997 is concerned, the fact was that the Applicant was not permitted to enter the School and mark his presence in the attendance register by the then Principal and even he stopped his salary. Much before the issue of charge-sheet itself, he informed the K.V.S. Head Quarter vide his Annexure A-17 letter dated 24.11.1997 narrating the various incidents of his harassment and also requested to allow him to join duty at some other place. The said letter was not replied by the respondents. Aggrieved by the harassment, he himself raised the issue in C.M.P 10418/97 in W.P. (C ) No.3399/97 and requested for posting him outside the control of the said Principal. Hence, the respondents cannot be allowed to take the benefits of their own wrong by including the alleged charge. The Honble High Court of Delhi, vide its order Annexure A-18 dated 10.12.97, directed the respondent to pay him at least 75% salary to the applicant.
As far as Charge-III is concerned, it has also not been proved as no witness was examined to prove the said charge. The Enquiry Officer erred in holding that the said charge was proved on the basis of his Annexure B reply letter dated 28.11.92 as the same was erroneously arbitrarily considered as his admission. The Enquiry Officer ignored the cardinal principle that while deciding the case on the basis of the admission of the charge by the Charged Employee the admission must be clear, concise and unconditional. The Enquiry Officer failed to read his statement in its entirety but misinterpreted his partial statement as per his own convenience. In this regard he has relied upon the judgment of the Apex Court in Satya Prakash Vs. U.O.I. 1980 (3) SLR 64 wherein it has been held as under:-
An admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all.
He has also relied upon the judgment of the Apex Court in the case of Ministry of Finance Vs. S.B. Ramesh AIR 1998 SC 853 wherein it was held that in such circumstances, the woman considered also should have been examined to prove the charge. The relevant part of the said judgment is as under:-
3. Now on merits.
The respondent in this appeal was working as an Income-tax Officer, Group 'B', during the relevant period. He was proceeded departmentally by filing a charge-sheet dated 7-5-87 for alleged irregularities in the income-tax assessment. For reasons with which we are not concerned, that was not pursued after certain stage. Later on, the respondent was served with another charge-sheet dated 25-3-88. The article of charge reads as follows:-
"Shri S. B. Ramesh, Income-tax Officer, Group-B, Andhra Pradesh (now under suspension) has contracted a second marriage with Smt. K. R. Aruna while his first wife. Smt. Anusuya is alive and the first marriage has not been dissolved. By this act, Shri S. B. Ramesh has violated Rule 21(3) of CCS (Conduct) Rules, 1964. In any case, Shri S. B. Ramesh has been living with Smt. K. R. Aruna and has children by her. Thereby Shri S. B. Ramesh has exhibited a conduct unbecoming of a Government servant and has accordingly violated Rule 3(1)(iii) of the CCS (Conduct) Rules, 1964."
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7. The Tribunal, on a consideration of the pleadings and documents placed before it, found that the findings were rendered on surmises and presumptions and the documents marked as exhibits were not properly proved and the non-examination of Smt. Aruna was also fatal to the case of the prosecution. The Tribunal was aware of the well settled position that the degree of proof required in the departmental disciplinary proceedings need not be of the same standard as the degree of proof required for establishing the guilt of an accused in a criminal case. However, the Tribunal found that there was a total dearth of evidence to bring home the charge that the delinquent Officer has been living in a manner unbecoming of a Government servant or that he has exhibited adulterous conduct by living with Smt. K. R. Aruna and begetting children. On that basis the Tribunal set aside the order impugned before it, namely, the order of compulsory retirement of the delinquent officer.
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14. On a careful perusal of the above findings of the Tribunal in the light of the materials placed before it, we do not think that there is any case for interference, particularly in the absence of full materials made available before us in spite of opportunity given to the appellants. On the facts of this case, we are of the view that the departmental enquiry conducted in this case is totally unsatisfactory and without observing the minimum required procedure for proving the charge. The Tribunal was, therefore, justified in rendering the findings as above and setting aside the order impugned before it.
15. In the result, the appeal fails and is dismissed accordingly with no order as to costs.
Moreover, the Court of criminal jurisdiction has already gone into the matter and by the Annexure A-55 Final Report filed by the Investigating Officer before the Court of M.M., Khetri Nagar, it has been stated that no offence was made out against the applicant. This Final Report was considered neither by the respondent no.3 nor by the appellate authority. Further, he has relied upon Rule 3 (a) of the Hindu Marriage Act, 1955 which provides as under:-
(a) the expression custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to Public Policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.
(iii) The charge of illegal marriage is not maintainable as the said charge was earlier served upon the Applicant vide charge sheet dated 25.4.1994 but it was abandoned without imposing any penalty on account of the fact that final report dated 28.1.95 was accepted by the Civil Court Khetri vide its decision dated 28.1.95 on the basis of the report submitted by the concerned Investigating Officer of the case that the lady, namely, Sarita resided at her matrimonial house only four days and left the matrimonial house herself and was with her lover giving the divorce to the applicant as per social custom before several relatives. The Civil Court, Khetri accepted the said final report which was never challenged by Sarita or anyone else. Further, the said fact of abandonment of charge in respect of illegal marriage has also been admitted in punishment order 11.8.2009 wherein it has been stated by the Disciplinary Authority itself that it was an open and shut case. Therefore, serving the same charge again, that too, after 5 years on 17.2.99 has no relevancy. Further, the mala fide intention of the Respondents against the applicant is evident from the fact that they did not even consider that it was on the basis of the report of the SSP Aligarh dated 25.9.92 relied upon them to punish him, the Civil Court Khetri closed the case against him accepting final report dated 28.1.95 submitted by the I.O. therein. Further, while framing the charge of illegal marriage again in the year 1999, the said SSP was not enlisted as a witness. The lady Sarita or anyone on her behalf have also not been included in the list of witnesses in order to verify and examine the said document dated 25.9.1992 and to prove the same. No enquiry has been conducted on Article of Charge III in violation of Article 311(2) of Constitution of India and Rule 14 of CCS (CCA) Rule 1965. Hence the conclusion of the Enquiry Officer that the said charge was proved is wrong and illegal. The said fact was also brought by the applicant before the Disciplinary Authority and the Appellate Authority but they have not considered it.
(iv) It was obligatory on the part of respondents to mention the reasons of cancellation of the earlier charge served to the applicant before framing it again as per D.G P&T letter No.114/324/78-Disc.-II dated 5.7.1979 reproduced in the CCS (CCA) Rules, 1965 which reads as under:-
(3) Reasons for cancellation of original charge sheet to be mentioned if for issuing a fresh charge-sheet. It is clarified that once the proceedings initiated under Rule 14 or Rule 16 of the CCS (CCA) Rules, 1965, are dropped, the Disciplinary Authorities would be debarred from initiating fresh proceedings against the Delinquent Officers unless the reasons for cancellation of the original charge-sheet or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. It is, therefore, important that when the intention is to issue a subsequent fresh charge-sheet, the order cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action and indicating the intention of issuing a subsequent charge-sheet appropriate to the nature of charge the same was based on.
(v) Though it has been alleged by the respondent that fact of second marriage has been admitted by the Applicant but they failed to appreciate that he has also stated that Civil Court, Khetri has already accepted the final report submitted by the Investigating Officer in the year 1995 and not taking said part of his admission while punishing him, amounts to violation of law and natural justice as observed by Honble Supreme Court in case Mohmad Koya Vs. Muthu Goya, AIR 1979 SC 154 wherein it has been held that an admission unless it is separable has to be taken as a whole or not at all.
(vi) The Applicant has also submitted that the social realties brought to the notice of the Enquiry Officer have never been considered. In this regard, he has relied upon the judgment of the Honble High Court of Delhi in Shiv Ram (Ex-Constable) Versus Union of India and Others page AISLJ (7) 2012 (2) 280 wherein it has been held as under:-
15. We had prefaced our order by bringing out the conflict in the social thinking in rural areas and urban areas. Whatever be the reason, legislation has hardly any impact in rural areas. One reason could be that the Government hardly reaches out to those areas and they decide to live by their own norms. It has to be kept in mind that the petitioner is a constable and his social thinking would be in tune with the social thinking in rural areas. Right or wrong, he was led or misled, whatever may be the expression one may choose to use, to go by the dictates of the village elders. He thought that the customary divorce in April 2002 was fine. So did Kalo Devi think; remarrying Narain Singh on 11.1.2006. Narain Singh is an army man. Thereafter, petitioner married Indu Sharma on 16.11.2006. The finding of the First Court of Inquiry is in harmony with the social realities in India. Its acceptance by the Commandant was correct. Petitioner was rightly advised to regularize the technical wrongs. We see no reason why the petitioner should be made to suffer.
16. Suffice would it be to state that intention plays a very important part in every wrong. Needless to state an act becomes a wrong if backed with the requisite intention. Lacking an intention, an act would not be an offence.
(vii) He has also relied upon the judgment of the High Court of Allahabad in the case of Pancham Giri Vs. State of U.P. & Others decided on 22.03.2010. The relevant part of the said judgment reads as under:-
32. The case of the petitioner is still more peculiar as against the decisions referred to by the Apex Court and referred to herein above.
33. This is a case of bigamy, which is a serious misconduct. The punishment which has been meted out is a major penalty under Rule 4 of the 1991 Rules. The said Rule provides for major and minor penalties. Sub Rule 2 of Rule 4 provides for additional punishments to be inflicted. The heading of major penalties under which the petitioner was proceeded with mentions dismissal from service, removal from service and reduction in rank including reduction to a lower scale or to a lower stage in a time scale. Rule 8 of the 1991 Rule provides for the holding of an inquiry and Sub Rule 4 (a) (b) provides for severe punishment in two cases namely allowing a person in police custody to escape and conviction in an offence involving moral turpitude. The same carves out of an exception that it can be a lesser punishment provided the Punishing Authority has to record reasons as to why it considers otherwise to award a lesser punishment.
34. The case of the petitioner is that he entered into bigamy and, therefore, the proceedings against him cannot be said to be in defiance of any logic. Had this misconduct been discovered promptly when it was committed in the year 1982, the question of proportionality may not have arisen at all. The judgment of the learned Single Judge of the Bombay High Court, which was upheld in the case of Bharat Forge Company Limited (supra) also held that the passage of time of the service of the employee of 10 years cannot minimize the misconduct by over emphasizing the length of services as the previous actions of misconduct of the employee also deserved to be taken into account. The employee had also misconducted himself on previous occasions.
35. The case of the petitioner is, therefore, distinguishable to this extent that there is no indication of any previous misconduct that may add to his detriment as in the case of the employee referred to in the decision of Bharat Forge Company Limited (supra). The petitioner has been made a victim on account of his erroneous belief, which he says was necessary for salvation. This cannot by itself shock the conscience of the Court. On the contrary this cannot be considered to be a genuine belief of the petitioner against law and social beliefs of the time. The Society as on today may not generally give any acceptance to such a belief.
36. The second wife or the first wife did not lodge any complaint on the petitioner. The action of the petitioner in entering into a second marriage cannot be said to be an act of morally depraved conduct. He contracted the second marriage with the consent of the first wife, who has supported his cause and has carried on with the petitioner for the past 28 years without demur or complaint. In fact, the first wife has herself compounded the element of bigamy.
37. In such a situation and in view of the fact that the petitioner was to retire within one year or slightly more from his service, can the said punishment of dismissal be said to be disproportionate. Coupled with this is the huge size of family of the petitioner and the old age of the petitioner and his two wives. It is here where one has to consider the aspect of proportionality as to why the other alternative punishments under the heading of major penalties indicated in Rule 4 could not be considered to be a suitable punishment.
38. To allow a man to peacefully continue to almost complete his journey as a public servant for 28 years and then make him stand at the edge of cliff and push him over, resting the justification in law as misconduct, has to be observed, to my mind with a title diluted but human approach. The reason is his exceptionally long period of service. It is true that passage of time will not reduce the guilt, but the punishment can be proportioned with an approach towards the lesser punishments that are available in the rules itself. The mind has to be applied to find out a reason, in the peculiar facts of a case like the present one as to why the lesser punishments would not be appropriate when they have been provided under the same rules. This takes one to the gravity of the misconduct which in this case became a discovery after 28 years. It is here where one's sense of mature justice is brought to test. The proportionality of the punishment therefore requires a careful measurement on the scales of reason and justice combined. Merely because it is a serious misconduct, does not necessarily categories it for the extreme penalty of dismissal. It has to be assessed on its own facts and the nature of the indiscipline. The petitioner has not runaway with somebody's else's wife so as to bracket the action involving moral turpitude nor has he attempted to shield himself on any such count. His case has been consistent throughout supported by his first wife. These factors, which are the other side of the coin have not been assessed by the authorities appropriately which do require a consideration. The conscience of the Court on the above noted principles has been thoroughly disturbed which in my opinion calls upon my "conscious" approach to command the authorities to invoke the principle of proportionality. The petitioner has to live with a disrepute of misconduct but that can be done with a lesser punishment without putting the entire family of the petitioner to peril. That would be unjustly outrageous.
39. To my mind, the said aspect has to be considered in the backdrop of the aforesaid facts. The continuance of the petitioner at the fag end of his career was found detrimental to a disciplined force which may in given circumstances be correct, but in my opinion, the said aspect deserves an examination by the appropriate authority as it strikingly moves the conscience to the extent as to why a lesser major penalty would not serve the purpose. Even though the Rules do not indicate any other penalty like compulsory retirement but the same can be explored by the appropriate authority in the given set of circumstances provided it is permissible under rules.
40. The conduct of the petitioner was an absolute personal affair of the petitioner in relation to the consummation of second marriage and the same had got nothing to do with the affairs of the State or the discharge of his public duty to that extent. The judgment in the case of Amal Kumar Baruah of the Guwahati High Court (supra) comes to the aid of the petitioner.
41. Accordingly, for the reasons given herein above and in the peculiar facts of the present case as discussed I would prefer to set aside the order of the revising authority dated 18th November, 2008 passed by the Inspector General of Police, Allahabad Zone, Allahabad to the aforesaid extent only. The Inspector General of Police may, therefore, consider the aforesaid limited aspect of proportionality as the other aspects need not be interfered with. To that extent, the order dated 18th November, 2008 is set aside with a direction to the respondent No. 2 to pass an order after assessing the aforesaid factors in accordance with law.
42. With the aforesaid observations, the writ petition is partly allowed.
(viii) He has also relied upon the judgment of the High Court of Gauhati in the case of Amal Kumar Baruah Vs. State of Assam and Others decided on 07.03.2006. The relevant part of the said judgment reads as under:-
4. I have heard Mr. D. R. Gogoi, learned Counsel for the petitioner and Mr. H. K. Mahanta, learned Government Advocate, Assam.
5. Sri Gogoi, learned Counsel for the petitioner, in the course of his argument has submitted that the complaint of the first wife in respect of the second marriage entered into by the petitioner was only in the context of the apprehensions of the first wife that she may not receive any financial assistance from the petitioner for her upkeep and also for the upkeep of the four children. The complaint, therefore, was not against the second marriage as such. Sri Gogoi, learned Counsel for the petitioner, has further referred to the statements of the first wife recorded in the course of the enquiry wherein she had admitted that after the second marriage the petitioner had been looking after his earlier family and that the second wife was living in the same family and that there was no difficulties in adjusting to the new situation. On the aforesaid facts, learned Counsellor the petitioner has contended that the Disciplinary Authority ought not to have proceeded any further with the departmental enquiry and in any event ought not to have imposed the extreme punishment of dismissal from service on the petitioner.
Sri Gogoi, learned Counsel for the petitioner, in the course of his argument, has also contended that under Rule 26 of the Assam Civil Service (Conduct) Rules, 1965 a second marriage, per se, does not amount to misconduct. What the Rules require is prior permission of the authority to enter into a second marriage and in the present case it is not the finding of the Enquiry Officer that the second marriage of the petitioner was without due permission. In such circumstances, the Order imposing punishment is contended to be legally invalid. A further argument has been made by the learned Counsel for the petitioner that in the conduct of the enquiry against the petitioner he was not given adequate opportunity to engage a defence assistant and to cross-examine the persons examined by the Enquiry Officer in support of the charges. The conduct of the enquiry, therefore, is contended to be in violation of the principles of natural justice.
6. Sri H.K. Mahanta, learned Government Advocate, Assam, while controverting the arguments advanced on behalf of the petitioner has submitted that in the present case the petitioner had virtually admitted that he had entered into the second marriage during the subsistence of the first and being a member of a disciplined force, the punishment of dismissal from service is just, proper and adequate and no interference will be called for from this Court.
7. I have considered the arguments advanced on behalf of the rival parties.
It is not the petitioner's case that the second marriage entered into by him was with due permission. In the written statement filed by the petitioner as well as in the course of the enquiry and, in fact, at no stage, the petitioner had contended that requisite permission for entering into the second marriage was received by him. Before this Court also it is not the stand of the petitioner that permission was accorded to him. In such circumstances, it is difficult to visualize as to how the absence of a finding by the Enquiry Officer that the second marriage of the petitioner was without due permission of the appropriate authority can be held by the court to have vitiated the conclusions reached and the punishment imposed.
8. The petitioner having virtually admitted his second marriage at all stages, strictly speaking, there was no necessity of a formal enquiry. In such a situation, this Court will hardly be required to go into the question as to whether reasonable opportunity to defend himself was denied to the petitioner in the enquiry held and whether the said enquiry is vitiated for violation of the principles of natural justice.
This will bring the court to the last question which is the core issue in the case, i.e., whether the punishment imposed on the petitioner is so grossly disproportionate that this Court must exercise its rare power under Article 226 of the Constitution to interfere with the punishment imposed. A significant fact which must be noticed at this stage is that the report of enquiry, which is available on record, indicates that the first wife of the petitioner had, in the course of the enquiry, virtually withdrawn her complaint by saying that, after the second marriage the petitioner is looking after her and the children and that the second wife has become a part of their family.
A decision has been cited at the Bar which is reported in (1995) 2 GLR 388 (Prafulla Kalita v. Oil and Natural Gas Commission, Dehradun and Ors.) wherein a Co-ordinate Bench of this Court had taken the view that an allegation of bigamous marriage not being connected with performance of duties by the concerned incumbent, even if such a marriage had been proved in a departmental enquiry, the same cannot invite the extreme punishment of dismissal. The punishment imposed was, therefore altered. The decision in Prafulla Kalita (supra) was taken in appeal and relying on a Supreme Court judgment in the case of State Bank of India v. Samarendra Kishore Endow and Anr. reported in MANU/SC/0655/1994 : (1994)ILLJ872SC , the Division Bench interfered with the decision of the learned Single Judge in Prafulla Kalita (supra). In State Bank of India (supra), the Apex Court had taken the view that the High Court in the exercise of power under Article 226 will not be vested with the authority to alter the punishment imposed by the disciplinary authority. The Division Bench of this Court while over-ruling the view taken by the learned Single Judge in Prafulla Kalita (supra), however, did not touch upon the correctness of the view recorded by the learned Single Judge to the effect that a bigamous marriage not being connected with due discharge of duties, should not invite the extreme punishment of dismissal. The interference of the Division Bench was only on the basis of the law laid down by the Apex Court in State Bank of India (supra), i.e., availability of the power to substitute the punishment imposed. The Apex Court, soon thereafter, in the case of B.C. Chaturvedi v. Union of India and Ors. reported in MANU/SC/0118/1996 : (1996)ILLJ1231SC had gone back to the earlier view prevailing, namely, the High Court in an appropriate case would have the power to alter the punishment imposed provided such punishment is found by the High Court to be grossly disproportionate or the quantum of the punishment shocks the conscience. of the court. It may be noticed at this stage that after the decision of the Apex Court in B.C. Chaturvedi (supra) a Division Bench of this Court in Trilok Singh Rawat v. Union of India MANU/GH/0306/2000 : 2000 3 GLT 558 had approved the view taken by the learned Single Judge of this Court in Prafulla Kalita (supra). The Division Bench had interfered with the punishment of dismissal imposed on a charge of bigamy and imposed a lesser punishment.
9. The Apex Court in several subsequent decisions including the one in the case of V. Ramana v. A. P. SRTC and Ors. reported in MANU/SC/0539/2005 : (2005)IIILLJ725SC , referred to at the Bar, has taken the view that the proportionality of the punishment imposed should be judged by application of the Wednesbury principles and on application of such principles if the court is satisfied that the punishment imposed is disproportionate or shockingly excessive, the High Court would have the option to sending the matter back to the authority or in an appropriate case to impose the punishment itself. The facts in V. Ramana (supra) must be noticed at this stage. In Ramana's case the Apex Court was dealing with the punishment of dismissal imposed on a Conductor of the Andhra Pradesh State Road Transport Corporation who was found to have acted in breach of trust in not issuing tickets to the passengers as required and in not maintaining proper records of tickets issued and fares collected. In short, what is sought to be emphasized is that in Ramana's case the misconduct was in the context of performance of duties of the post held by the incumbent. In the present case, clearly and evidently, the second marriage of the petitioner has nothing to do with either his official position or discharge of official duties.
10. The act of entering into a second marriage during the validity of the first marriage, if such second marriage is not permissible under the personal law of the concerned person, is an offence covered by Section 494 of the Indian Penal Code. However, by virtue of the provisions contained in Section 320(2) of the Code of Criminal Procedure the offence under Section 494 of the Indian Penal Code is compoundable with the leave of the court. Section 320(8) of the Cr.P.C. contemplates that on an offence being compounded in the accordance with the provisions of Section 320, the person charged with the offence stands acquitted. Section 320 a of the Code of Criminal Procedure does not make all the offences under the Indian Penal Code compoundable. There are some offences which are compoundable without permission of the court and some other offences are compoundable with permission of the court. There is a third category of offences which are not compoundable at all. The effect of an offence, being compounded has also been noted. From the above provisions of the Cr.P.C. it will not be incorrect to come to the conclusion that the law itself treats different offences on a different, if not unequal, footing. The aforesaid fact would be relevant because it furnishes an objective basis for deciding as to what punishment should be imposed on a delinquent in a departmental proceeding where the subject-matter of the charge also amounts to a criminal offence. Punishment imposed by the employer in a disciplinary proceeding must always be by application of objective standards and not on the basis of personal perceptions of the disciplinary authority. It is here where the provisions contained in Section 320 of the Code of Criminal Procedure making the offence of bigamy a compoundable offence would furnish a reasonable, objective and acceptable basis for imposition of punishment in a departmental proceeding where the charge also is one of bigamy. For commission of misconduct under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 seven different shades of punishment starting with censure and ending with dismissal from service is contemplated. Which particular punishment should be imposed in a particular case, undoubtedly is the prerogative of the employer. But such a decision has to be taken on an objective basis and not on individual and personal perceptions. When the charge of bigamy under the criminal law has been made a compoundable offence, compoundable at the volition of the affected parties, the effect of which is an acquittal of the offender, the extreme punishment imposed on the petitioner in the present case in a situation where the first wife had virtually withdrawn her complaint, cannot but be understood to be wholly disproportionate and made without due application of mind. Any action without due application of mind cannot have judicial approval. If another punishment which could have brought in lesser consequences can be contemplated, the imposition of extreme punishment of dismissal has to be construed by the court to be disproportionate.
11. I, therefore, interfere with the punishment imposed and as the same had been so imposed without due consideration of the relevant facts and circumstances as pointed out in the present order. I am of the view that the authority should be directed to reconsider what should be the correct measure of punishment to be imposed on the petitioner. Such reconsideration will be done by the authority within a period of 45 days from the date of receipt of a certified copy of this Order and if on such reconsideration any other punishment is imposed on the petitioner which may have the effect of his reinstatement in service, I deem it appropriate to leave it to the authority to make appropriate orders for award of such consequential benefits as may be found to be due to the petitioner.
12. The impugned Order dated 21.7.2001 is, therefore, set aside and the writ application, consequently, stands partly allowed, as indicated above.
(ix) Though, in compliance of the direction of the Honble High Court of Delhi dated 21.5.2007 in W.P. (C) No.16390/2006 (supra), the Respondents have reinstated him in service on 04.06.2007 and simultaneously appointed Inquiry Officer as well as Presenting Officer yet no subsistence allowance was paid to him in spite of his request on 9.6.2007 and such the action on the part of the Respondents are violative of the directions of the Government as applicable to Respondents issued vide OM No.11012/10/76-Estt.(A) dated the 6th October, 1976. The relevant part of which reads as under:-
Timely payment of subsistence allowance- In the case of Ghanshyam Das Srivastava v. State of Madhya Pradesh [AIR 1973 SC 1183] the Supreme Court had observed that where a Government servant under suspension pleaded his inability to attend the enquiry on account of financial stringency caused by the non-payment of subsistence allowance to him, the proceedings conducted against him ex parte would be in violation of the provisions of Article 311 (2) of the Constitution as the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings.
(x) The Respondents by appointing Shir S.K. Mengi as Inquiry Officer has violated the law laid down in this regard. In this regard, he has relied upon the order of a co-ordinate bench of this Tribunal in OA 1104/2007 Smt. Santosh Verma Vs. U.O.I. & Others where it was held as under:-
5. On careful consideration of the rival contentions of the parties, in our considered view, which is inconformity with the doctrine of precedent, as laid down for the Tribunal by the Apex Court in Sub Inspector Rooplal & Ors. v. Lt. Governor through Chief Secretary, Delhi & Ors., 2000 (1) SCC 644 the decision in Sangeeta Ashok (supra) has relied upon the decision of the Apex Court to lay down a ratio decidendi that a retired KVS employee cannot be appointed as an EO. The aforesaid plea was also upheld by the High Court of Judicature at Allahabad, which has attained finality on rejection by a reasoned order by the Apex Court. Accordingly, the decision cited of Guwahati High Court (supra) having not taken into consideration the decision in Ravi Malik (supra) of the Apex Court is not only per incuriam but also in the matter of choosing precedent it is trite that it is open for a Bench to which decision of the High Court under whose jurisdiction the Bench is not functioning, if cited, to pick up at its prerogative and as the decision of the Allahabad High Court has relied upon the decision of the Apex Court, we rely upon the same to hold that a retired KVS employee cannot be appointed as an enquiry officer. As such, the appointment of EO when he is without jurisdiction rest of the proceedings followed is also nullity in law, which vitiates the order of penalty as well.
(xi) The charge of unauthorised absence is not maintainable as the Respondents neither allowed the applicant to join his duties nor release his salary for long time, which is evident from the fact that the Honble High Court of Delhi vide order dated 27.10.98 directed the respondents to pay Rs.15000/- and file their counter reply posting the case for 25.11.98. Further, mala fide of the respondents is proved from the fact that though it has been alleged by the respondents that the applicant is absent w.e.f. 21.11.97, yet said allegation has been raised only after one year vide letter dated 2.11.98, and the intervening period starting from 21.11.97 to 2.11.98, the respondents never preferred to place their contention either before the Honble Tribunal at any point of time or before the applicant in writing.
(xii) The Enquiry Officer did not give him reasonable opportunity to defend his case. In this regard he has relied upon the judgment of the Apex Court in Kuldeep Singh Vs. the Commissioner of Police and Others AIR 1999 SC 677 wherein it was held as under:-
27. This Rule, which lays down the procedure to be followed in the departmental enquiry, itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to cross-examine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him then also it could be brought on record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial enquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be procured.
XXX XXX XXX
32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness.
(xiii) He has also relied upon the judgment of the High Court of Delhi in Commissioner of Police & Others Vs. Bikram Singh W.P. (C) 3466/2010 wherein it has been held as under:-
10. It is well-settled that an Enquiry Officer does have a right to ask clarificatory questions as the Enquiry officer is not supposed to act as a silent spectator. However, if he intends to seek clarification, he should say so specifically. He cannot cross-examine the witnesses and that also without permitting the charged official a further right to cross-examine the witnesses. The conduct of the Enquiry Officer thus caused a serious prejudice to the case of the respondent. The Tribunal rightly came to a conclusion that the enquiry report cannot be sustained because it suffers from basic procedural flaws and is violative of not only the principle of natural justice but also of the prescribed rules and the law as discussed in the impugned order. Consequently, the Tribunal set aside the orders of the Disciplinary Authority as well as the Appellate Authority, which were based upon the findings in the enquiry report. We find ourselves in complete agreement with the views expressed and decision taken by the Tribunal. In view of that, we dismiss the writ petition in limine with no orders as to costs.
(xiv) He has also relied upon the judgment of the co-ordinate bench of this Tribunal in OA No.271/2009 Head Constable Munshi Ram Vs. Govt. of NCTD & Others wherein it has been held as under:-
10. On first blush and ex facie the inquiry report does not show consideration of the defence produced by the applicant and the contentions raised. The inquiry officer in his conclusion has not whispered about this what to talk of recorded reasons as to how the charge against the applicant has been proved. As this is not in consonance with Rule 16 (ix) of Delhi Police (Punishment & Appeal) Rules, 1980 and being a quasi-judicial authority having failed to render the responsibility, the inquiry report cannot be sustained in law as also the consequent orders.
11. Resultantly, OA is allowed to the extent that impugned orders are quashed. Applicant shall be entitled to all consequential benefits, as admissible in law. However, if so advised, respondents are at liberty to take up the proceedings from the stage of recording evidence as per Rule 16 (ix) of Delhi Police (Punishment & Appeal) Rules, 1980. In such an event, law shall take its own course. No costs.
(xv) He has also relied upon the judgment of the High Court of Gauhati (Imphal) in the case of Rohit Kumar Bhujel Vs. Union of India (UOI) and Others decided on 10.07.2009. The relevant part of the said judgment reads as under:-
11. It is unnecessary to repeat that in a Departmental Inquiry proceeding an aberrant officer is entitled to get a appropriate opportunity to know the articles of charges and to challenge them appropriately. As a matter of fact, CCS (CCA) Rules, 1965 which are applicable in this case also explicitly, specify the procedure of conducting an inquiry. Sub-rule 8 of Rule 14 of the said Rules offers a delinquent Government servant an opportunity of assistance from any other Government servant to present the case on his behalf. However, restrictions are there in engaging a legal practitioner in a departmental proceedings. The aforesaid provision confers the right to a delinquent to get the assistance of a Government officer to enable him to defend, his case significantly to his own satisfaction. The obligation and the task of affording opportunity of being heard to the Government servant is cast on the respondents. To be more precise "a reasonable opportunity of being heard", as envisioned in Article 311 of the Constitution of India has been interpreted to mean 'a genuine and effective opportunity and not mere pretence'. The opportunity to be given is to be adapted to the situations, keeping in view rank, educational qualifications and social backgrounds of the employees. In such circumstances, a duty is saddled on the authority concerned to make the delinquent employee conscious of his right to receive such help of the Government officer for defending his case by adequately explaining the concerned delinquent the effect and consequence of refusal to cross-examine the witnesses. In fact, in the present case the concerned disciplinary authority did not actually deal with that aspect of the subject in right perspective, in terms of the requirement of law.
12. The appellate authority only stated that the petitioner contracted plural marriage and thus it refused to accept the plea of any lighter punishment. The Disciplinary Authority relied upon the report of the Inquiring Officer, but the departmental proceedings which was made available by the respondent for perusal of this Court do not reflect that said report was ever furnished to the petitioner. Thus the petitioner did not get any opportunity to take the assistance of other government servant to defend his case. He was also deprived of the opportunity to cross-examine the witnesses. In the circumstances, it can be safely held that the petitioner was denied the opportunity to defend his case effectively and properly, and on that ground alone, the order of removal of the petitioner from the service can not be sustained.
13. The factual matrix projected by the Inquiry Report disclosed second marriage by the petitioner. The only deliberation in respect of the petitioner, which remains to be considered here, is as to whether before contracting the second marriage he obtained permission to get married from the concerned authority. In this context relevant extract of the Rule 21 of the CCS (Conduct) Rules, 1964, is, given below for the sake of easy reference:
21. Restriction regarding marriage. - (1) No Government employee shall enter into, or contract, marriage with a person having a spouse living; and (2) No Government employee having a spouse living, shall enter into, or contract, a marriage with any person;
Provided that the Government may permit a Government employee to enter into, or contract, any, such marriage as is in Clause (1) or Clause (2) if it is satisfied that
(a) such marriage is permissible under the personal law applicable to such Government employee and the other party to the marriage; and
(b) there are other grounds for so doing;
(3) A Government employee who has married or marriages a person other than of Indian nationality shall forthwith intimate the fact to the Government.
14. Rule 21 of the CCS (Conduct) Rules, 1964, as such does not contemplate a prior permission. The permission may be prior or it may be also ex-post facto. Obviously, the discretion is left on the Government either to give permission or refuse it, on evaluation of the fact situation as indicated in Clause (a) and (b) of Rule 21 of the CCS (Conduct) Rules 1964. It is the Government alone who has to, in the facts and circumstances of the case, either permit or refuse the second marriage to the petitioner. The rule does not indicate such permission must always be prior permission as has been held by the disciplinary authority. However, it cannot be lost sight of that the entire provision is included in the Rule in order to establish discipline and control in the establishment of the Government institutions as well as to maintain peace and harmony in the family of the employees in the society.
15. Thus keeping in view the entire gamut of affairs leading to Inquiry and punishment awarded to the petitioner, I am of the considered view that the punishment of dismissal for contracting second marriage, in the facts and circumstances of this case is an excessive punishment, therefore, the same is required to be set aside. Accordingly, I set aside the impugned order of removal of the petitioner from service and leave the question of imposing lighter punishment to the disciplinary authority. The disciplinary authority will be at liberty to pass any order of punishment except dismissal or removal from service, after taking into consideration of the entire facts and circumstances of the case.
16. However, this exercise may be carried out by the respondents within a period of 3 (three) months from the date of production of certified copy of this order.
The writ petition is disposed of.
32. The Respondents as a preliminary submission stated that Article 80 of Education Code which governs the disciplinary matter has accepted the extension of the application of CCS (CCA) Rules, 1965 mutatis mutandis to the employees of the KVS and the disciplinary proceedings have been held against the Applicant strictly in accordance with the said rules.
33. Further, they have submitted that as far as the procedural aspect of the disciplinary enquiry against the Applicant is concerned, both the Applicant and the Respondents are bound by the consent order dated 29.5.2007 passed by the Honble High Court of Delhi in W.P. (C ) No.16390 of 2006 filed by the Respondents in this OA. According to the said order, the evidence already recorded by the Enquiry Officer in the previous proceedings would be taken as evidence led for the purpose of enquiry and the Applicant has withdrawn all his legal and other objections to the enquiry. He was also given the liberty to cross-examine the prosecution witnesses and to lead and conclude the evidence within two months from the date of conclusion of cross-examination of prosecution witnesses. He has also undertaken to fully co-operate in the further enquiry proceedings. Further, they have stated that according to the said order, the Applicant was reinstated in service, vide letter dated 31.5.2007, and a new set of Enquiry Officer and Presenting Officer was appointed on 4.6.2007. He has also been paid the subsistence allowance vide letters dated 16.6.2007 and 21.6.2007. Further, the Enquiry Officer concluded the enquiry and submitted its report to the Disciplinary Authority on 13.5.2009 holding that all the three Articles of Charge have been proved beyond doubt. The report was considered by the Disciplinary Authority after following the procedure prescribed and after giving due opportunity to the applicant, an order of penalty of dismissal from services was imposed upon him, vide order dated 11.8.2009. The Appellate Authority has also disposed of his appeal by the reasoned order dated 13.9.2010. The supplementary appeal filed by the Applicant dated 27.12.2009 was duly considered but rejected vide order dated 4.11.2010.
34. As regards the Articles of Charges are concerned, they have stated that being a PGT (Phy.) it was the duty of the Applicant to take over the charge of Physics Laboratory but he refused to accept the charge to avoid work either on one pretext or the other. He has also disobeyed the orders of the Principal, KV No.2 Amritsar by not taking over the charge of Physics Lab. on flimsy grounds, whereas he should have taken over the charge after verifying the ground balance with the stock mentioned in the stock register. As regards the other charges of unauthorised absence and contracting second marriage without divorcing the first wife are concerned, he was given full opportunity to defend his case. They have also denied any mala fide in appointing the IO as the same was done in accordance with the CCS (CCA) Rules, 1965. They have relied upon the daily order sheet dated 22.01.2009 wherein it was recorded that the IO in consultation with the charged official and the Presenting Officer has decided that cross examinations of 8 witnesses shall be carried out in two parts, four of them viz. Mrs. Anita Parmar, TGT (Bio), Shri Daljit Singh, Lab. Attendant, Mrs. Seema Mahendru, PGT (Eng) & Mrs. Kusum Dhawan all of KV No.2 will be called on 13.2.2009 and the remaining four will be called later. However, the Applicant failed to provide any evidence/exhibit to prove his innocence of the Articles of Charge issued to him vide charge sheet No.F.9-99/KVS(JR)/11870 dated 17.2.1999. He was given the final opportunity to cross examine the prosecution witnesses as directed by the Honble High Court of Delhi on 13.2.2009, during the course of enquiry, the prosecution witnesses were produced one by one by the Presenting Officer to the charged official for cross examination. But the charged official did not cross examine and did not avail this final opportunity but continued to insist that Shri Nangia shall cross examine the prosecution witnesses and not him. Further, they have defended the orders of the Disciplinary Authority as well as the Appellate Authority as legal and valid. The Appellate Authority has considered all the facts/evidence on record and submission made by the Applicant in his appeal dated 18.8.2009. After due application of mind, he reached the conclusion that his appeal is devoid of merit and does not require any interference with the penalty order dated 11.8.2009 passed by the Disciplinary Authority. Accordingly, the appeal of the Applicant was rejected, vide order dated 13.9.2010. The Respondents counsel, Shri S. Rajappa has also submitted written arguments consolidating the aforesaid submissions.
35. We have heard the Applicant who argued the case in person and the learned counsel for the Respondents, Shri S. Rajappa, in great detail. We have also gone through the pleadings in this case running into approximately 950 pages. Most of the documents in this case are generated in various litigations the Applicant was engaged in during the last 15 years starting from 17.2.1999, the date on which the charge sheet was issued to him. Rest of them are copies of case laws relied upon by the Applicant and the written arguments of the parties.
36. As already observed, during the aforesaid period, the Applicant has been fighting against the Charge Memo dated 17.2.199 which ultimately culminated in the Disciplinary Authoritys order dated 11.8.2009 dismissing him from service and the Appellate Authoritys orders dated 13.9.2010 and 4.11.2010 rejecting his appeal dated 18.8.2009 and the supplementary appeal dated 27.12.2009 respectively. The aforesaid orders of the Disciplinary Authority and the Appellate Authority were the 3rd set of orders passed thus after the earlier two sets have been set aside by this Tribunal and upheld by the High Court in separate proceedings. Initially, the Disciplinary Authority passed its order dated 20.09.1999 removing the Applicant from service after holding that the charges issued to him vide the aforesaid Memo dated 17.2.1999 have been proved. The Applicant challenged the said order as well as the charge Memo vide OA 619/2000 (supra) but it was dismissed vide order dated 16.7.2001 directing the Applicant to exhaust the statutory remedy of appeal as provided in the CCS (CCA) Rules, 1965. However, the appeal filed by the Applicant was rejected by the Appellate Authority vide its order dated 14.12.2001. On the basis of the liberty granted to him by this Tribunal in its earlier order dated 16.7.2001, the Applicant again challenged the Charge Memo and the orders of the Disciplinary Authority and the Appellate Authority vide OA 246/2002. This Tribunal, finding various procedural infirmities in the enquiry proceedings as well as the denial of opportunity to defend his case by not forwarding the copy of the enquiry report, set aside the aforesaid orders giving liberty to the Respondents to resume the disciplinary proceedings against the Applicant from the stage of furnishing the enquiry report. The Respondents challenged against the aforesaid order before the Honble High Court of Delhi vide W.P. (C ) 8092/2003 but it was dismissed vide order dated 6.4.2004. Thereafter, the second round of proceedings before the Disciplinary Authority began. The Disciplinary Authority vide its order dated 3.12.2004, furnished a copy of the Enquiry Officers report to the Applicant with the direction to him to submit his representation, if any, against it within 15 days. Interestingly, vide another order of the same date, the Disciplinary Authority imposed the punishment of removal upon the Applicant with immediate effect. The Appellate Authority, vide its order dated 20.1.2006, had also no hesitation to reject the appeal dated 30.05.2005 against the aforesaid order of Disciplinary Authority issued in total violation of the principles of natural justice. The Applicant again challenged the aforesaid impugned order of Disciplinary Authority and Appellate Authority before this Tribunal vide OA No.281/2006. This Tribunal set aside those orders observing the pre-determined mind of the authorities concerned to do away with the service of the Applicant somehow or other. This Tribunal has also observed that the Enquiry Officers report itself was in violation of the principles of natural justice, issued without any reasons and, therefore, perverse. As a result, this Tribunal vide its order dated 27.7.2006 set aside the impugned orders but with the liberty to the Respondents to proceed against the Applicant, if so advised, from the stage of according him opportunity of defence. The Respondents did not accept the said order also. Instead, they challenged it before the Honble High Court of Delhi vide C.W.P. No.16390/2005 and High Court passed a consent order therein on 21.5.2007 observing that the Applicant will withdraw all his legal and other objections to the enquiry but with the liberty to cross examine the defence witnesses. The Respondents on the other hand would reinstate the Applicant within a week and the subsistence allowance will be paid to him within the said period. But the Respondents violated the said order from the beginning. Instead of reinstating him within one week, i.e., by 28.5.2007, they reinstated him only on 4.6.2007. Again no subsistence allowance was paid to him within the prescribed date. Even on reinstatement with effect from 4.6.2007, he was posted at Udhampur with immediate effect but he was not given the TA/DA as admissible under the rules, though it was paid to him subsequently. In order to cross examine the prosecution witness as allowed by the High Court in its order dated 21.5.2007, the Applicant requested the Enquiry Officer to permit him to engage Shri R.C. Nangia as his Defence Assistant. The Enquiry Officer was determined not to permit Shri R.G. Nangia to be his Defence Assistant on the ground that he was a terminated employee of the KVS. The Applicant tried to convince the Enquiry Officer that the Respondents had raised the same objection in another disciplinary proceedings and the Honble High Court itself has allowed Shri R.G. Nangia to act as the Defence Assistant in that case. The Enquiry Officer did not budge from his position. As a result, the Applicant was denied his valuable right to cross examine the prosecution witness. The Enquiry Officer thus closed the enquiry and asked the PO as well as the Applicant to submit their written briefs. The written complaints to the Disciplinary Authority against the Enquiry Officer who was not allowing him to engage the Defence Assistant of his choice also did not evoke any response. Finally, the Enquiry Officer submitted his report on 30.05.2009 holding that all the charges have been proved. Based on the aforesaid report, the Disciplinary Authority has imposed the ultimate penalty of dismissal from service itself, on the Applicant. The Appellate Authority has also rejected his appeal. The contention of the Respondents is that both the Applicant and the Enquiry Officer were bound by the consent order dated 29.05.2007 passed by the Honble High Court in CWP No.16390/2006 (supra) but the Applicant has not cross-examined the prosecution witnesses in spite of the opportunity given to him. Therefore, the Enquiry Officer concluded the enquiry and submitted his report to the Disciplinary Authority.
37. First of all, we shall observe that the Memorandum dated 17.2.1999 issued to the Applicant proposing to hold the enquiry under Rule 14 of CCS (CCA) Rules, 1965 against him contains three Articles of Charge which are unrelated. The incidents related to the said charges have also occurred at different period of time. The first Article of charge is that during the period from 12.12.1996 to 20.11.1997, the Applicant did not take over the charge of Physics Laboratory and stock ledgers in spite of the order of the Principal and thus, he wilfully and deliberately disobeyed the lawful orders and instructions contravening Rules 3(I)(ii) & (iii) of CCS (Conduct) Rules, 1964. The second Article of Charge is that of unauthorised absence from duty from 21.11.1997 contravening Rule (I) (iii) of CCS (Conduct) Rules, 1964. The third Article of Charge is that he entered into second marriage with Smt. Sunita on 5.5.1992 without getting divorce from his first wife Smt. Sarita violating sub-rule (2) of Rule 21 of CCS (Conduct) Rules, 1964.
38. The third charge of second marriage was one of the earlier charges issued to the Applicant 5 years back vide Memorandum dated 25.4.1994 proposing to hold enquiry under Rule 14 of the CCS (CCA) Rules, 1965. The other Articles of Charge contained in the said Memorandum were that he (i) deliberately failed to carry out the instructions of the superior officers, (ii) committed mischief in the practical examination for Physics, (iii) did not teach for one month during August-September, 1991 and (iv) found indulged in private tuitions during 1991-92. It is seen that after issuing the aforesaid charges, since no further proceedings were taken in the matter for over five years, they had a natural death. Further, it is seen from the record that the charge of second marriage was a matter of criminal investigation by the Police and trial by the Court of Metropolitan Magistrate, Khetri Nagar. The Investigating Officer, after due enquiry into the allegation filed his report before the Court that no offence was made out against the Applicant and the case itself was closed on 28.1.1995. It is a well settled principle that while issuing a fresh charge sheet, not only the earlier charge sheet should have been dropped but also the reasons for cancellation of the original charge sheet should have been mentioned in the new memo. As instructions under the CCS (CCA) Rules, 1965, the Government has already clarified this position vide DG, P&T letter No.114/324/78-Disc.II dated 5.7.1979 which has been relied upon by the Applicant. According to the said instructions, once the proceedings initiated under Rule 14 or Rule 16 of the CCS (CCA) Rules, 1965, are dropped, the Disciplinary Authorities would be debarred from initiating fresh proceedings against the Delinquent Officers unless the reasons for cancellation of the original charge-sheet or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. In the impugned charge memo dated 17.2.2009, there is absolutely no mention about the earlier charge memo. Moreover, the Memo dated 25.4.1994 contained altogether five charges. The mala fide of the Disciplinary Authority is quite evident from the fact that it selectively resurrected only the charge of second marriage and ignored the other charges. Therefore, there is merit in the contention of the Applicant that the said charge was re-issued to him only with the mala fide intention of harassing him.
39. Further, the Disciplinary Authority held that the aforesaid charge was proved beyond doubt on the basis of the conclusion arrived at by the Enquiry Officer that the Applicant himself has accepted of having entered into second marriage illegally. If that was the case, why the Disciplinary Authority has held the enquiry in the matter at all. According to sub-rule 5 (a) of Rule 14 of the CCS (CCA) Rules, 1965, if the Article of Charge is admitted by the Government servant in his written statement of defence, Disciplinary Authority shall record its findings and impose the appropriate punishment. In the impugned Memorandum dated 17.2.1999 also, the Disciplinary Authority has informed the Applicant that an enquiry will be held only in respect of those articles of charge as are not admitted. Therefore, the very fact that an enquiry into the 3rd charge has been held itself shows that the Applicant did not admit the said charge. What the Applicant stated in this regard in his letter dated 28.11.1992 was that he entered into a marriage contract with Sarita D/o Shri S.P. Singh of Village Mahamdpur (U.P.) on 21.2.85 as per social customs. Further, according to the said letter, soon after the marriage, on the forth day, i.e., on 24.2.1985 itself Sarita left his home at Neemkhera (U.P.) saying openly before his several relatives that she was breaking the contract of marriage with him and went back without the consent either from him or from his parents. Thus the contract of marriage was rescinded by Sartia as per their social custom. Since then she has been living away from him. Although his relatives have tried to their best to get the contract of marriage continued but in vain because of the refusal of Sarita. Therefore, by all means, the contract of marriage was broken by Sarita herself in 1985 itself. Further, during December 1987, when he was living at Khetri Nagar, in his absence, two of his relatives again tried in vain to contact Sarita to settle the matter. Thereafter, there was no scope for the existence of the contract of marriage with her and it came to an end as per their social customs and consequently, the case of his divorcing her does not arise. However, the Enquiry Officer, Disciplinary Authority and the Appellate Authority distorted the aforesaid statement and treated it as an admission of guilt. Therefore, the judgment of the Apex Court in Satya Prakashs case (supra) is quite apt in this case. In the said judgment, Apex Court held that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. Further, the Respondents did not bother to summon the woman, Smt. Sarita as a witness in the disciplinary proceedings against the Applicant as against the principle laid down by the Apex Court in the case of S.B. Ramesh (supra). They have also failed to summon SSP, Aligarh but took into consideration of his report dated 25.9.1992. Such a procedure is in violation of the principle laid down by the Apex Court in M/s Bareily Electricity Supply Co. Ltd. Vs. The Workmen and Others 1971 (2) wherein it has been held that when a document is produced in a Court or Tribunal, the questions that naturally arise are, is it a genuine document, what are its contents and are the statement contained therein true. If a letter or other document is produced to establish some fact which is relevant to the enquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges that fact. Again in Hardwari Lal Vs. State of U.P. and Others 1999 (8) SCC 582 the Apex Court held that the non-examination of the medical witness is a serious flaw in the enquiry proceedings. Further, as held by the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Ors 2009 (2) SCC 570, merely tendering the document is not sufficient to prove the charge but the concerned witness has to prove the said document. The IO did not take any effort in his direction. The Applicant was also denied his valuable right to cross-examine those persons and to establish the veracity of his case. On the other hand, the IO failed to consider the final report filed in the matter before the Criminal Court in Khetri Nagar way back on 28.1.1995 produced by the Applicant. As held by the Apex Court in the case of Pancham Giri (supra) while bigamy is a serious misconduct, every second marriage cannot be held to be an act of morally depraved conduct. Even Rule 21 (2) of the CCS (Conduct) Rules, 1964 violation of which has been alleged against the Applicant is not without exception. According to the proviso to sub-rules (1) and (2) of Rule 21 (ibid), Central Government may permit a Government servant to enter into, or contract any marriage with a person having a spouse living or a marriage with any person while his/her spouse living, if it is satisfied that (a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage and (b) there are other grounds for doing so. According to the Applicant, he entered into the 2nd marriage under the cursory rights available to him and it was permissible on that ground. Again, as held by the Apex Court in Shiv Rams case (supra) relied upon by the Applicant, an act become wrong only if it is backed by requisite intention. In spite of the aforesaid position, the Enquiry Officer, in an unfair and arbitrary manner, concluded that the aforesaid charge has been proved. The Disciplinary and Appellate Authorities also, in a pre-determined manner, accepted the said finding and passed their orders. In our considered view, aforesaid findings and orders are without any valid evidences against the Applicant and, therefore, they are perverse.
40. Another impropriety in holding the enquiry raised by the Applicant and rightly so is that by appointing Shri S.K. Mengi, a retired employee of KVS, the enquiry got vitiated. In this regard, the Applicant has relied upon the order of co-ordinate bench of this Tribunal in Smt Santosh Vermas case. The respondents did not refute this contention.
41. Apart from all the aforesaid infirmities, the most serious flaw in the disciplinary proceedings against the Applicant is that Enquiry Officer denied him the opportunity to defend his case properly by disallowing him to avail himself of the services of the Defence Assistant of his choice. As held by the High Court of Delhi in the judgment of Jiwan Singh (supra) one of the well-settled principles of natural justice requires that a delinquent official, if he so desire, be allowed the assistance of another official of his choice to represent him in the enquiry. The Applicant repeatedly informed the Respondents that his choice of Defence Assistant is Shri R.G. Nangia but the Respondents arbitrarily denied permission to engage him. The contention of the Respondents was that Shri Nangia was a terminated employee of KVS and, therefore, he cannot be permitted to act as Defence Assistant under the provisions of the Education Code. But the Applicant has given specific cases in which Shri Nangia was allowed to serve as Defence Assistant in disciplinary proceedings against the employees of KVS by the Honble High Court of Delhi. He has produced the copies of the orders of the High Court before the Enquiry Officer and the Enquiry Officer in turn referred the matter to the Disciplinary Authority but no decision was taken. But the Enquiry Officer continued to insist that the Applicant should engage some one else stating that the request of the Applicant to engage Shri Nangia was a closed chapter. In our considered view, the right to choose the Defence Assistant cannot be interfered with by the Enquiry Officer or the Disciplinary Authority. Moreover, it is the admitted position by the Respondents themselves that the provisions of CCS (CCA) Rules, 1965 will apply mutatis mutandis to the employees of KVS. Rule 14 (8) (a) of the said rules only says that the the Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits. The said Rule does not impose any embargo to the Government servant to engage any terminated or removed or dismissed employee as held by the Enquiry Officer. This position was also confirmed by the Honble High Court of Delhi by permitting Shri Nangia himself as the Defence Assistant in other cases of the Respondent KVS. As the Enquiry Officer did not permit the Applicant to choose the Defence Assistant of his choice, he lost his valuable opportunity and valuable right to cross-examine the prosecution witnesses and establish his defence before the Enquiry Officer.
42. Further, it is an essential requirement of any departmental enquiry that the enquiry report should contain not only the prosecution charges and the evidence produced on behalf of the prosecution but also the defence of the delinquent employee in respect of each Article of Charge. As has already been stated earlier, there were three charges against the Applicant, namely, (i) the Applicant while functioning as PGT (Phy) w.e.f. 12.12.96 to 20.11.97 in Kendriya Vidyalaya No.2 Amritsar did not take over the charge of Physics Lab and stock ledgers along with the stock mentioned therein, (ii) the Applicant while functioning as PGT (Phy) in the aforesaid Kendriya Vidyalaya was absenting from duty w.e.f. 21.11.1997 and (iii) the Applicant while functioning as PGT (Phy) Kendriya Vidyalaya No.2 Kehtri Nagar entered into second marriage without divorcing legally to his first wife. The Applicant has specifically stated in his defence that first charge was contrary to KVSs own instructions that Laboratory Assistant is responsible for maintenance of proper account of the stock in use and any accidental damage or loss of apparatus must be immediately brought by him to the notice of the teacher incharge. The Laboratory Assistant is also responsible for the general care of the apparatus. Any damage/loss caused to the apparatus has to be made good by him. As regards the second charge was concerned, the Applicant has submitted that he was not permitted to enter the School and mark his presence in the attendance register by the then Principal and even stopped his salary. Much before issuing the charge-sheet to him, he informed the K.V.S. Head Quarter vide his Annexure A-17 letter dated 24.11.1997 narrating all the incidents of harassment suffered by him at the hands of the Principal. He had also requested the KVS to allow him to join in some other schools in some other places. As regards the third charge is concerned, the Applicant has stated that in the said charge was, the Applicant contented that his letter dated 28.11.1992 was not a confession or admission of the charge. The Enquiry Officer in its report did not mention any of those submissions made by the Applicant. The Enquiry Officer conveniently did not include any of those submissions in his report. The Disciplinary Authority and the Appellate Authority also did not consider those submissions made by the Applicant. In the absence of cross examination of the prosecution witnesses by the Applicant as he was not allowed to have his Defence Assistant of his choice, the Enquiry Officer, as an impartial quasi-judicial authority, should have considered all the aforementioned submissions of the Applicant in a fair manner and rendered his findings as to why they were not acceptable. In M.V. Bijlani Vs. Union of India and Others 2006 (5) SCC 88, the Apex Court has held as under:-
..Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
43. Further, it is necessary that the Enquiry Officer should assess the evidence on record in respect of each Article of Charge. But a perusal of the enquiry report in this case would reveal that no such attempt has been made by the Enquiry Officer to analyse even the prosecution evidence on record.
44. We also do not find merit in the contention of behalf of the Respondents that just because the Honble High Court in its order dated 29.05.2007 held that evidence already recorded by the Enquiry Officer in the previous proceedings would be taken as evidence, further proceedings held by the Enquiry Officer should not be in accordance with the principle of natural justice. As well settled, the theory of reasonable opportunity and principle of natural justice have been evolved to uphold the rule of law. The principles of natural justice require that the employee should have a fair opportunity to meet, explain and contradict the changes before he is condemned. If the opportunity for cross-examination of the prosecution witness through his Defence Assistant was given to the Applicant and evidence on his behalf was also taken on record, the result of the findings would have been different.
45. In the above facts, circumstances and legal points, we are of the considered view that the Inquiry Officer, the Disciplinary Authority and the Appellate Authority have not performed their quasi-judicial functions in accordance with the principles of natural justice and in a fair manner. The Enquiry Officer denied proper opportunity to the Applicant to defend his case in an effective manner. The conclusion arrived at by the Enquiry Officer is also not based on any valid evidence. Hence it is arbitrary as well as perverse. Consequently, we allow this OA and quash and set aside the impugned Enquiry Officers report dated 19.07.1999, Disciplinary Authoritys order dated 13.09.2010 and Appellate Authoritys order dated 04.11.2010. As the Applicant has already attained the prescribed age of superannuation during the pendency of this OA, to remove the irregularities and to remedy the violations of the principles of natural justice committed by the aforesaid authorities, there is no possibility of issuing any direction to the Respondents to reinstate him in service and to continue with the enquiry proceedings from the stage the aforesaid violations have taken place. Further, it is to be borne in mind that the enquiry proceeding against the Applicant has been going for over a decade and although these years, he was trying to vindicate his position before the departmental authorities, this Tribunal and the High Court of Delhi in a series of proceedings. He has also succeeded in establishing that the last two enquiry proceedings in which the Disciplinary Authority had removed him from service was not in accordance with the principles of natural justice and in accordance with the prescribed procedure. On both those occasions, the Respondents themselves have reinstated the Applicant in service. In the present proceedings also, it is seen the Enquiry Officer, the Disciplinary Authority and the Appellate Authority repeated the same irregularities.
46. We, in the above facts, circumstances and the settled law in the matter, allow this OA and set aside the impugned Enquiry Officers report dated 13.5.2009, Disciplinary Authoritys order dated 11.8.2009 and the Appellate Authoritys order 13.9.2010 and 4.11.2010. Since the Applicant has already attained the age of superannuation, during the pendency of this OA before this Tribunal, he shall be deemed to have been reinstated in service from the date he was dismissed from service. Further, he shall also be deemed to have retired from service on the due date with all terminal benefits as admissible under the rules. As far as the pay and allowances for the period between his date of dismissal and date of superannuation is concerned, the competent authority shall take appropriate decision in accordance with the rules. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order and appropriate orders shall be issued under intimation to the Applicant.
47. However, in the above facts and circumstances of the case, the Applicant is not entitled for payment of any costs.
(MR SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh