Central Administrative Tribunal - Allahabad
Ajit Kumar vs Jawahar Navodaya Vidyalaya on 16 March, 2023
RESERVED ON 14.03.2023.
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 16th day of March 2023.
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Sanjiv Kumar, Member (A)
Original Application No. 330/00662/2018
Ajit Kumar S/o Lakshman Ram, R/o Qt. No.CD/7.II, Sector-2, P.O.
Dhurwa and P.S. Jagarnathpur, Ranchi Jharkhand 834004.
. . . Applicant
By Adv: Shri N.P Singh/Shri Aman Arya
VERSUS
1. Union of India through the Secretary, Ministry of Human
Resources Development, Department of Education, Shastri
Bhawan, New Delhi 110001.
2. Jawahar Navodaya Vidyalaya Samiti, through the Commissioner,
NVS Human Resources Development Department, Government
of India, Head Quarter at B-15, Institution Area, G.B. Nagar,
Sector - 62 Noida, Uttar Pradesh 201309.
3. Joint Commissioner (Administration) NVS, Human Resources
Development Department, Government of India, Head Quarter at
B-15, Institution Area, G.B. Nagar, Sector 62, Noida, Uttar
Pradesh 201309.
4. The Deputy Commissioner, NVS Pune Region, MSFC Bhawan
2nd Floor, B-Wing, 270 Sengupta Bapat Road, Pune -16,
Maharashtra.
5. The Principal Jawahar Navodaya Vidyalaya, P.O. Belore Taluka
Ghatanji, Dist Yavatmal, Pin 445301, Maharashtra.
. . .Respondent
By Adv: Shri K.D. Mishra
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-
"i For calling of the records and quashing/setting aside of the order as contained in letter No. PF/CA26/NVs(PR)/2012/3250 dated 24.12.2012, whereby the respondent No. 4 as the disciplinary authority has imposed upon the applicant the penalty Page 2 of 8 of removal from service under Sub Rule 11 of CCS (CCA) Rules 1965.
ii. For quashing/setting aside of the order as contained in letter No. F,9-4/2013-NVs (Estt.)/28 dated 9.01.2014, whereby the respondent No. 3 as Appellate Authority declined to interfere with the order of penalty imposed on the applicant by he disciplinary authority and dismissed his appeal as it being devoid of any merit.
(iii) For quashing/setting aside of the order as contained in letter No. 2360 dated 20.04.2018, whereby the respondents Revisional Authority rejected the revision petition filed by the applicant.
iv. For a direction upon the respondents authorities to reinstate the services of the applicant with all consequential monetary benefits with interest and penal interest. v. For any other order/directions to which the applicant may be found to be entitled in the facts and circumstances of the case".
2. The brief facts of the case are that applicant was appointed as a Catering Assistant on 22.07.1996 in Jawahar Navodaya Vidyalaya (in short JNV), District Latur (Maharashtra). During the posting at JNV, Yavatmal, Maharashtra, he was allegedly involved in a criminal case which occurred on 27.7.2009, wherein a lady Daily Wage Mess Helper namely Smt. Taibai (Rajni) Khartade was allegedly raped and burned with kerosene oil and she died on 01.08.2009. The applicant was arrested by the Police and he was placed under suspension w.e.f. 27.7.2009 due to his detention in Police custody for more than forty- eight hours. Thereafter he remained in Jail from 31.07.2009 to 27.10.2009. During the period of suspension, the Headquarters of the applicant was ordered at JNV Bhavnagar (Gujarat). The applicant was released on bail on 26.10.2009. Subsequently Additional Session Judge, District Yavatmal vide order dated 04.11.2009 directed the applicant to report to the Ghatagi Police Station daily, Therefore on the request of the applicant his suspension headquarter was changed from JNV, District Bhavnagar to JNV, District Yavatmal with immediate effect until further order vide order dated 31.01.2010. A full-fledged disciplinary proceeding was initiated against the applicant and a charge-
Page 3 of 8sheet was served upon the applicant. Mr. P.S. Sardar, Principal, JNV, Washim, Maharashtra was appointed as the Inquiry Officer to inquire into the charges framed against the applicant. Written submission of defence has been filed by the applicant denying the charges levelled against him. He has also objected to the appointment of Enquiry Officer and Presenting Officer as both of them were arrayed as witness at serial Nos. 6 and 7 of the list witnesses but the representation of the applicant to change the enquiry officer as well as presenting officer was rejected vide order dated 07.12.2010. Applicant requested to the authority concerned to defer the disciplinary proceeding till adjudication of the criminal case. Nevertheless the enquiry was directed to be continued by the same enquiry officer and presenting officer. Inquiry Officer submitted his enquiry report on 10.10.2012. The disciplinary authority in exercise of his powers conferred by Rule 15 (4) of CCS (CCA) Rules 1965 vide his order dated 24.12.2012 (Annexure A-1), the services of the applicant was removed. Against the order of removal from service, applicant preferred an appeal before the respondent No. 3 but appellate authority/respondent No. 3 did not considered any of the grounds taken by the applicant vide his order dated 1.9.2014 (Annexure A-2) declined to interfere with the order of disciplinary authority. Against the above orders, applicant preferred an OA No. 051/00048/2014 before the CAT, Circuit Bench, Ranchi, which was dismissed. Aggrieved against the order of the CAT, Circuit, Bench, Ranchi, applicant filed a Writ Petition No. 4498 of 2016. The Hon'ble High Court of Jharkhand at Ranchi disposed of the writ petition and quashed the order of CAT, Circuit Bench, Ranchi dated 07.01.2016 on the point of jurisdiction and Hon'ble High Court directed the applicant to approach the appropriate forum for challenging the orders passed by the Disciplinary Authority and by the Appellate Authority subject to law of limitation, if any. During the pendency of above stated W.P (s) No. 4498/2016, applicant acquitted of the offences punishable under section 376 (2) (g) read with 109, 302 read with 34 of IPC and section 3 (1) (X) & 3 (2) (V) of SC & ST (Prevention of Atrocities Act) in connection with Crime No. 91/2009.
4. We have heard Shri A. Tripathi, learned counsel for the applicant and Shri K.K. Ojha, learned counsel for the respondents and perused the record.
Page 4 of 85. Submission of the learned counsel for the applicant is that enquiry has not been initiated in fair play because the in the instant case inquiry officer and presenting officer has also been nominated as witnesses of the case. It is further submitted that deletion of names of I.O. and P.O. as witnesses after exhibiting of entire set of 32 documents and securing the deposition of all the witnesses, without approval of the disciplinary authority is also against the rules. It is further submitted that action of the I.O. in proving charge after exclusively relying upon his own letter , vitiate the entire disciplinary proceedings. It is again submitted that I.O. having rendered an opinion against the applicant in an earlier enquiry, his appointment as I.O. was against the rules. Learned counsel for the applicant argued that charges leveled against the applicant are not sustainable. Enquiry Officer himself was the witness against the charges. This fact was brought to the notice of the Disciplinary Authority but despite several representations made by the applicant enquiry officer was not changed. On this sole ground itself, enquiry report is vitiated. Referring to the article of charge No. 1 and 2, it was next argued that the applicant has been acquitted in criminal offence. Thus, on this ground also these two charges cannot be sustained. Referring to charge No. 3 it was further argued that applicant has already been punished after enquiry, therefore, leveling allegation against the applicant that he did not cooperate in the enquiry in response to the summon issued against him is meaningless. This fact also shows the biasness of the enquiry officer against the applicant. Learned counsel refers to the contents of charge No.4 and further argued that applicant was present at the station concerned. This fact find support with the documents annexed with the OA as well as supplementary affidavit. After releasing from bail, applicant immediately reported to the competent authority thereafter he became ill. Due to this reason he did not appear. A clear cut direction has been issued by the court granting bail to the applicant to report to the police station concerned daily. Thus referring to the aforesaid argument, it was further argued that charge No. 4 is also not sustainable and report of the enquiry officer is without evidence. Learned counsel for the applicant refers to the charge No. 5 and further argued that this charge also was not proved by the prosecution as the competent authority has issued letter of appreciation while inspecting the mess concerned. To substantiate his argument, learned counsel for Page 5 of 8 the applicant also refers to the audit report in which the work and conduct of the applicant has been found appreciated. It was next argued that since enquiry officer himself was the witness in the enquiry, he should not conduct the enquiry. No one can be judge in his own case. Thus referring to the entire documents and record it was further argued that appellate authority as well as revisional authority both did not consider the question raised by the applicant and dismissed the appeal and revision summarily without applying judicial minds. Finding arrived at by the enquiry officer, disciplinary authority, appellate authority as well as revisional authority are perverse and illegal. Thus prayer was made to allow the OA and to set aside the impugned orders passed by the disciplinary authority, appellate authority as well as revisional authority. In support of his submission, learned counsel for the applicant placed reliance on the following case laws:-
(1) Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-ed). Higher Secondary School (judgment dated 14.05.1993 in Civil Appeal No. 2680 of 1993).
(2) Capt. M. Paul Anthony Vs. Bharat Gold Mines & others reported in (1999) 3 SCC 679.
(3) Dwarka Nath Sharma Vs. Union of India & others passed in Civil Appeal No. 3224 of 1989 on 8.8.1989.
6. Learned counsel for the respondents argued that as and when this fact was known to the enquiry officer that he himself is the witness in the enquiry, his name was removed from the witness list. Thus plea taken on behalf of the applicant on this score is not acceptable. It was next argued that mere exoneration or acquittal in criminal charges will not be presumed that charge Nos.1 and 2 are not proved. An FIR was registered, applicant was arrested, he was in jail, trial continued, witnesses were examined thereafter he was acquitted. Thus all ingredients to attract the misconduct are available. There is no illegality, infirmity or perversity in the finding of the enquiry officer, order of disciplinary authority regarding the charge Nos. 1 and 2. Since the applicant did not cooperate in the earlier enquiry, therefore, the charge No. 3 is also proved, opinion formed by the enquiry officer is based on evidence. Applicant after obtaining bail did not join the Headquarter, therefore, the charge No. 4 is also proved. As regard charge No. 5, at the time of inspection delinquent employee did not furnish the relevant register said to have been maintained regarding the functioning of the mess. This fact has been proved during the enquiry. Thus there is no Page 6 of 8 infirmity or perversity in the finding of the enquiry officer regarding the charge No. 5 also. Referring to the findings of the disciplinary authority, appellate authority as well as revsional authority, it was next argued that no illegality, infirmity and perversity are found in the finding arrived at by them. Charges leveled against the applicant had been provided. Punishment imposed upon the applicant is in accordance with law.
7. We have considered the rival submissions advanced by the learned counsel for the parties and thoroughly gone through the judgments relied upon by the learned counsel for the applicant and written submissions filed by the counsel for the parties.
8. Hon'ble Supreme Court judgment in the case of Rattan Lal Sharma (supra) has held as under:-
"One of the cardinal principles of natural justice is : Nemo debetesse judex in propria causa (No man shall be a judge in his own cause). The deciding authority must be impartial and without bias, It has been held by this Court in Secretary to Government Transport Department v. Munuswamy [1988] Suppl SCC 651 that a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Personal bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias. A classic case of personal bias was revealed in the decision of this Court in state of U.P. v. Mohd. Nooh [1988] SCR 595. In the said case, a departmental enquiry was held against an employee. One of the witnesses against the employee turned hostile. The officer holding the enquiry then left the enquiry, gave evidence against the employee and there after resumed to complete the enquiry and passed the order of dismissal. This Court quashed the order of dismissal by holding inter alia that the rules of natural justice were grievously violated".
9. Hon'ble Apex Court in the case of Capt. M. PaulAnthony Vs. Bharat Gold Mines Ltd. (supra) has held as under:-
"There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were Page 7 of 8 established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex- parte departmental proceedings, to stand.
Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.
For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned Single Judge, in so far as it purports to allow the Writ Petition, is upheld. The learned Single Judge has also given liberty to the respondents to initiate fresh disciplinary proceedings. In the peculiar citcumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since 1985 despite having been acquitted by the criminal court in 1987, we would not direct any fresh departmental inquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forthwith on the post of Security Officer and shall also be paid entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified as Rs.15,000/-."
10. We have carefully considered the contention of the learned counsel for the applicant that 'one cannot be the judge of his own cause'. However, name of I.O. was removed from the witness list later on but it is true that deletion of names of I.O. and P.O. as witnesses was done after exhibiting of entire set of 32 documents and securing the deposition of all the witnesses and without approval of the disciplinary authority. It is also evident that action of the I.O. in proving charge after exclusively relying upon his own letter, vitiate the entire disciplinary proceedings. I.O. having rendered an opinion against the applicant in an earlier enquiry, his appointment as I.O. was against the rules.
11. Considering the facts and circumstances of the case and in the light of the observations made by the Hon'ble Apex Court, since the enquiry officer has proved the charge against the applicant after exclusively relying upon his own letter, which itself vitiate the entire disciplinary proceedings, he was also one of the witnesses in the Page 8 of 8 enquiry, this fact has been raised by the applicant at earlier stage but enquiry was conducted by the same person, thus, it can safely be held that prejudice is caused to the charged official, therefore, we are of the view that O.A. is liable to be allowed. Accordingly, O.A. is allowed. Impugned order dated 24.12.2012, 9.1.2014 and 20.4.2018 are quashed. Respondents are directed to reinstate the applicant in service with all consequential benefits.
12. There shall be no order as to costs.
(Dr. Sanjiv Kumar) (Justice Om Prakash-VII) Member (A) Member (J) Manish/-