Central Administrative Tribunal - Chandigarh
S.C. Sharma Ex-Principal vs Kendriya Vidyalaya Sangathan on 14 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH.
O.A.NO.500-CH-2008 Decided on : 14.10.2010
CORAM : HONBLE SMT. SHYAMA DOGRA, MEMBER (J) AND
HONBLE SHRI KHUSHI RAM, MEMBER (A)
S.C. Sharma Ex-Principal, Kendriya Vidyalaya, Ambikapur now resident of 380, Sector 44-A, Chandigarh.
Applicant
By : Mr. I.S.Sidhu, Advocate.
Versus
Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016 through its Chairman.
Respondents
By : Ms. Jyoti Chaudhary, Advocate.
O R D E R
MRS.SHYAMA DOGRA, MEMBER (J) The facts as projected by the applicant are that while working as Principal, Kendriya Vidyalaya, Suranussi, Jalandhar, he applied for earned leave from 13.2.997 to 12.5.1997 vide application submitted in December, 1996. The same was duly forwarded by Local Chairman, V.M.C. and Regional Office. He did not receive any intimation. After waiting for three months and in view of urgency of matter and domestic compulsion, the applicant left for abroad on 9.3.1997 after getting his leave sanctioned from the local Chairman, V.M.C. However, immediately thereafter the applicant was directed to report for duty. He was placed under suspension and then dismissed from service on 5.5.1999.
2. He filed an O.A. before this Tribunal which was allowed on 27.11.2002 to the effect that the applicant was held entitled to reinstatement in service. This was upheld by the Honble High Court of Punjab and Haryana on 11.2.2005. Meanwhile the applicant was re-instated in service on 13.12.2004 and posted at Kendriya Vidyalaya, Ambikapur in Chhattisgarh. He submitted a resignation on 12.2.2005 which was not accepted.
3. An enquiry was ordered against the applicant for which he was served with a charge memo dated 9.3.2005 on 15.3.2005. The same was not complete so the applicant submitted a representation to supply him annexures, which were duly supplied to him on 12.4.2005 vide Memorandum of Charge Sheet dated 12.4.2005 (Annexure A-4). The applicant submitted reply to the same on 15.4.2005 (Annexure A-5). The disciplinary authority appointed Inquiry Officer and Presenting Officer vide communication dated 23.3.2005 (Annexure A-6) and Annexure A-6/A).
4. It is submitted by the applicant that the I.O. gave short dates and rushed with the enquiry without giving reasonable opportunity of hearing to him. Even documents asked for by him vide Annexure A-7 were allowed by the I.O. vide Annexure A-8 but the same were not supplied to him to hamper his defence.
5. The I.O. proceeded hurriedly in the guise of order of the Honble Supreme Court. The Departmental Authorities took their own time. After 6.5.2005, the date of hearing before I.O. was fixed for 21.10.2005 and the applicant requested for change of date to 26.10.2005. On 26.10.2005 all the document ordered by the I.O. were not produced for the defence of the applicant in which circumstance, the applicant had no option but to participate in further proceedings being taken even in the absence of documents not supplied to him (Annexure A-9). The next date of hearing was 27.10.2005 and all the enquiry proceedings were concluded on that day in a most perfunctory manner and in complete disregard to the CCS (CCA) Rules as also principles of natural justice. Copy of order sheet dated 27.10.200 is Annexure A-10. The PO and applicant submitted written briefs, Annexure A-11 and A-12 and Annexure A-12/A.
6. The inquiry officer submitted his report dated 19.12.2005 (Annexure A-13). The proceedings were challenged by the applicant before C.A.T. Principal Bench, New Delhi and the Tribunal vide order dated 7.12.2004 (Annexure A-14) directed the respondents to permit the applicant to peruse the documents with regard to the articles of charge. The Disciplinary Authority directed the Inquiry Officer for compliance of the Court order. However, without fixing any date of hearing to allow the applicant to peruse the record the I.O. reiterated the report/order dated 9.12.2005 with a mention that opportunity had been afforded to the applicant as is apparent from the order sheet no. 5 dated 26.10.2005. Thus, the applicant in fact not provided any opportunity in terms of direction of the Tribunal.
7. The applicant submitted a representation against the report. However, the disciplinary authority passed order dated 11.8.2006 (Annexure A-3) dismissing the applicant from service. The applicant filed an appeal, Annexure A-3/1, which was dismissed on 14.2.2007, Annexure A-2. The applicant submitted a revision petition which was also dismissed on 26.12.2007, Annexure A-1.
8. The applicant has prayed for quashing the order dated 26.12.2007 dismissing his Revision Petition, quashing the order dated 14.2.2007 of dismissal of his appeal and order dated 11.8.2006 vide which he was dismissed from service with all the consequential benefits.
9. The respondents have filed a reply. They submit that the applicant remained willfully absent from his duty from 10.3.1997 to 7.7.1997 and from 8.7.997 to 5.1.1997 He was having only 120 days earned leave in his account. He is not entitled to any wages or allowance from 20.5.1997 to 4.5.1999 and from 5.5.1999 to 27.8.2005 which has rightly been held by the respondent based on the inquiry conducted by the Inquiry Officer appointed by the respondent. The applicant is a responsible officer and DDO of an Institution and should have proceeded abroad after obtaining the required NOC and getting the leave sanctioned by the competent authority.
10. It is submitted that the leave applied was not sanctioned in view of exigencies of work being the financial year ending. The decision was duly conveyed to him on the address mentioned by him in his leave application. As he did not report back to his duty and remained absent unauthorizedly, the disciplinary authority decided to proceed against him under Rule 19 of the CCS (CCA) Rules, 1965 and finally dismissed vide order dated 5.5.1999.
11. Honble High Court of Punjab and Haryana vide order dated 21.2.2003 had upheld the order of this Tribunal to reinstate the applicant in service on 13.12.2004 with posting at KV, Ambikapur. KVS had filed SLP ) No. 1020/2003 against the order of Honble High Court and the Honble Supreme Court declined to interfere with the portion of reinstatement of the applicant in service, but confined the SLP to the question of back wages only vide order dated14.8.2003. With regard to payment of back wages and consequential benefits to applicant, the KVS filed SLP No. 271/05 which was disposed of on 11.1.2004 with direction to the KVS to initiate departmental proceedings against the applicant and the entitlement of service benefits for the period from the order of dismissal till final decision is taken would be decided in the departmental proceedings.
12. Thus, the applicant was charge sheeted on 9.3.2005 and enquiry was conducted against him. The I.O. was appointed only after receipt of communication dated 19.3.2005 of applicant that the charge sheet is an after thought. He reported about missing documents only on 2.4.2005. The Honble Supreme Court directed to complete the proceedings within five months. When inquiry was not completed within afore-said period, the respondents asked for extension of time for six months i.e. up to 11.12.2005 within which the inquiry was to be completed at all costs.
13. The applicant was permitted to inspect all the documents specifically asked for by him. For other documents he did not made any specific mention. During the hearing on 26.10.2005, applicant was provided with document, letter from Police declaring him as absconder. Since the applicant had already been provided with the documents relevant to the charge levelled against him and disciplinary proceedings were already completed on 9.2.2005, no further cause of action lay with the I.O. as he stood by the findings of I.O. The proceedings were completed after the consent of both the charged officer and the Presenting Officer. The Inquiry was conducted in compliance to the order of the Honble Supreme Court and based on the findings of the I.O. he was dismissed from service. He was charge sheeted vide memo dated 9.3.2005. In response to the same a communication dated 19.3.2005 was received from him intimating that chare sheet is an after thought. There was no mention of any deficiency and the KVS appointed the IO and PO vide order dated 23.3.2005. The orders passed by the Disciplinary Authority, Appellate Authority and Revisioning Authority are speaking one and in accordance with the rules.
14. The applicant has filed a rejoinder to reiterate the submissions made in the Original Application.
15. We have heard the learned counsel for the parties and perused the material on the file.
16. The first limb of argument raised by learned counsel for the applicant on the basis of grounds taken in the appeal filed by the applicant is that no reasonable opportunity of hearing has been provided to the applicant at every stage of initiation, continuation and conclusion of the proceedings inasmuch as charge memo dated 9.3.2005 was received by him on 15.3.2005 and without awaiting his reply, inquiry officer and presenting Officer were appointed on 23.3.2005. This apparently appears to be untrue as the applicant had submitted communication dated 19.3.2005 denying the charges on the ground that same are after thought. Inquiry Officer and Presenting Officer were appointed on 23.3.2005. The applicant raised objection of missing documents on 2.4.2005 only and he was supplied documents vide memorandum dated 12.4.2005. In any case at that stage the applicant was only required to accept or deny the charges as he had to be afforded full opportunity to defend himself in the inquiry proceedings. It is well settled law that failure to provide an opportunity to the delinquent employee, to submit his explanation to the charge sheet, does not vitiate the disciplinary proceedings. Thus, failure to furnish the list of documents along with the charge sheet, even if it is assumed that the petitioner was deprived of the opportunity to submit an effective reply to the charge sheet, cannot be said to vitiate the enquiry proceedings.
17. It has been argued by learned counsel for the applicant that non production of leave account of the appellant has caused prejudice to his defence. The Presenting Officer had raised an objection as to what was the relevancy of the said document and Inquiry Officer towed the line of action of Presenting Officer. Thus, he had no option but to agree for further proceedings. The applicant himself chose to allow the enquiry to be conducted and condluded in the absence of said document and he cannot be allowed to turn around at this stage and say that non-production of the same has prejudiced his defence.
18. It is argued that the inquiry was conducted in haste inasmuch as applicant was asked to prepare his defence on 27.10.2005 itself without closing the case of the disciplinary authority. He closed the defence of the applicant on the same date. We find that there is no bar in completion of inquiry speedily more so when there directions of the Court of law to complete it in a time bound manner. This is, however, subject to the condition that principle of natural justice is not violated. Though vague and sweeping allegations have been made by the applicant in his appeal and Original Application also that there is violation of principles of natural justice but it has not been explained as to what prejudice was caused to the applicant on account of the same. Thus, the plea taken by the applicant when examined in the light of theory of prejudice falls to the ground.
19. It is argued that the there were three different charges on which the enquiry officer was required to question the applicant on the circumstances appearing against him in the evidence. However, he was put only one question whether he proceeded abroad without sanction of the competent authority. The other questions were not put to him. We find that the charges no. 2 and 3 flow from charge no. 1. If this charge is proved, the other would automatically stand proved as it cannot be denied that the applicant had remained in foreign country without prior permission from the authorities.
20. It is argued that the directions of the Principal Bench of this Tribunal in O.A.No. 2603 of 2005 decided on 7.12.2005 has not been complied by respondents and as such proceedings stand vitiated. A perusal of the said order shows that the direction was given to enquiry officer to permit the applicant to peruse the documents, if any, with regard to the article of charges, which are relevant and are with the I.O. so that the proceedings are finalized in accordance with law. The applicant has not been able to prove that any document, which was relevant, was not provided to him and non-production thereof has caused any prejudice to him. The matter was left at the sole discretion of the I.O. to provide document, if any, subject to its relevancy and it was not a blanket direction as sought to be projected by the applicant. Thus, the plea raised by the applicant is rejected.
21. It has been argued that perhaps I.O. was instructed secretly to rush through the inquiry in the guise of directions of the Honble Supreme Court passed on 11.1.2005 inasmuch as intentionally the applicant was supplied incomplete documents on 12.4.2005 and proceedings were fixed for hearing on 21.10.2005, after the last proceedings held on 6.5.2005. Thus, this five month time was consumed by authorities without any basis and to create circumstances favorable to them and applicant was reinstated in service on 19.1.2005 and posted at Ambikapur vide memo dated 25.5.2005. His posting at far off place resulted in denial of proper opportunity to defend himself as most of time he remained in journey. However, the applicant has not mentioned as to when he was asked to appear in the enquiry, he could not appear due to his posing at far off place. Thus, there is no merit in the stand taken by him in this regard.
22. It is argued that there is no application of mind by departmental authorities in proving the charge and imposing penalty thereafter. We have seen the orders passed by the authorities. We find that the orders are speaking one and have been passed with due application of mind after affording full opportunity to the applicant to defend himself and orders have been passed after considering the defence of the applicant.
23. The applicant submits that he had submitted representation dated 7.12.1996, an undertaking that in case he sought extension of time, he would deem to have resigned from the post. We do not find any relevancy in this plea of the applicant. The question to be determined was whether he had proceeded out of country without taking prior permission from the authorities.
24. It is argued that charges are contradictory to each other inasmuch as if the appellant had proceeded on leave without sanction and had gone abroad without prior permission, question of further extension of leave in violation of under-taking dated 7.12.1996 would not have arisen. We do not find any contradiction in the charges.
25. It is argued that the words written in Punjabi were wrongly translated inasmuch as the same were used to connote absent whereas translation was done to mean absconding which created bias in the mind of the authorities. This plea is also not tenable and we do not find any prejudice having caused to the applicant on this ground of use of word absconding as the question was of unauthorized absence.
26. It is submitted that the applicant had tendered resignation on 12.2.2005 which has not been considered while framing the charges on 9.3.2005 / 12.4.2005. Tendering of resignation by the applicant is one thing and issuance of charge sheet for the allegations contained therein is some thing else. Both have no connection at all and proceed on different facts.
27. The allegation that respondents acted with malice and bias has to be rejected. The applicant has chosen not to implead the disciplinary authority or the enquiry officer as a party in their personal capacity. It is settled law that the person against whom malice or bias is alleged should be impleaded as a party respondent to the proceedings, given an opportunity to meet the allegations and in his absence no enquiry over the allegations should be made.
28. A perusal of the impugned orders would show that the punishing authority has applied his mind to the case. The punishing authority has placed reliance upon the report of the Enquiry Officer meaning thereby he has not only agreed with the findings of the Enquiry Officer, but also has accepted the reasons given by him for the findings. In our opinion, when the punishing authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the Enquiry Officer and give the same reasons for the findings. We are unable to accept the contention made on behalf of the applicant that the impugned orders are vitiated being non-speaking orders and do not contain any reason. When (by the impugned order) the punishing authority has accepted the findings of the Enquiry Officer and the reasons given by him, the question of non-compliance with the principles of natural justice does not arise. In any case, the impugned order passed by the appellate authority also meets the requirement of law. Above all whatever is stated here, the fact remains that the applicant went abroad without getting the leave sanctioned from competent authority and it was an unauthorized absence.
29. In view of the above discussion, this Original Application is found to be devoid of any merit and is dismissed. No costs.
(KHUSHIRAM) (SHYAMA DOGRA)
MEMBER (A) MEMBER (J)
Place: Chandigarh.
Dated: _________
HC*
11
O.A.NO.500-CH-2008