Central Administrative Tribunal - Delhi
Mr. Ravi Shankar vs Govt. Of Nct Of Delhi Through on 31 July, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3350/2013 Order reserved on 6th July 2015 Order pronounced on 31st day of July 2015 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur, Member (A) Mr. Ravi Shankar Age 38 years, S/o Sh. Suresh Suman, R/o RZ-B-11, Dabri Extension (East), New Delhi-45 ..Applicant (Applicant in person) Versus Govt. of NCT of Delhi through 1. Chief Secretary, Govt. of NCT of Delhi, Players Building, I.P. Estate, New Delhi 2. Secretary (Education), Directorate of Education, Old Secretariat, New Delhi 3. Director of Education, Directorate of Education, Old Secretariat, New Delhi ..Respondents (By Advocate: Mrs. P.K. Gupta) O R D E R
Mr. A.K. Bhardwaj:
During contemplation of the disciplinary proceedings for his alleged physical molestation of girl students of the school contemplated against him, the applicant was kept under deemed suspension vide order dated 7.9.2005. Subsequently, he was charge sheeted under Rule 14 of CCS (CCA) Rules, 1965 vide memorandum dated 16.1.2006. The Board of inquiry was constituted under the Chairmanship of Mrs. Satinder Kaur, DDE (Inspection) and Mrs. Renu Dua, Vice Principal, SKV NO.2, Palam Enclave, New Delhi was appointed as Presenting Officer. The Committee submitted its report dated 27.11.2006 finding the charge against the applicant as proved. The report was served upon the applicant for his representation against it. After considering the record, the Director of Education, being the disciplinary authority, imposed the penalty of dismissal from service upon the applicant vide order dated 9.3.2007. Against the said order of punishment, the applicant preferred an appeal to the Secretary (Education), Government of NCT of Delhi. The appeal was rejected in terms of order dated. In the wake the applicant filed O.A. No.378/2009 before this Tribunal. The Original Application was disposed of in terms of Order dated 24.8.2009. Relevant excerpt of said Order reads thus:-
20. Resultantly, OA is allowed to the extent that impugned orders are set aside. Respondents are directed to deem the applicant under suspension from the date of dismissal. Respondents are at liberty to hold inquiry from the stage of memorandum. In such an event, law shall take its own course. No costs.
2. After the aforementioned Order passed by the Tribunal, the concerned authority nominated Mr. H.S. Chaudhary, ADE (PFC & Litigation) as inquiry officer to inquire into the matter and Ms. Meena Gupta, Vice Principal was appointed as the presenting officer in the matter. Nevertheless, in view of the charges against the applicant, the inquiry officer expressed his inability to conduct the inquiry and emphasized that the inquiry should be conducted by some female, thus Mrs. Savita Drall, Principal, SKV, Mata Sundari Road, New Delhi was nominated as inquiry officer to inquire into the charges. In the meantime, in implementation of the Order passed by the Tribunal, the applicant had been reinstated in service and was placed under suspension. When in terms of the order dated 29.7.2009 passed by Ms. Rekha, Metropolitan Magistrate he was acquitted of the charges in the criminal case, the applicant preferred representations/ appeal for revocation of suspension, reinstatement and dropping the disciplinary proceedings. Nevertheless, in view of the Order passed by the Tribunal (supra), it could be viewed by the concerned authorities that in the wake of the said Order quashing the orders of punishment and rejection of appeal, the applicant was to be kept under deemed suspension till the termination of proceedings. The inquiry officer, namely, Mrs. Savita Drall, Principal, SKV, Mata Sundari Road, New Delhi gave her report dated 14.9.2011 finding all the three charges leveled against the applicant as not proved. Paragraphs 2 and 11 of the inquiry report read thus:-
2. Statement of the case and article of charges:
2.1 The Chargesheet vide memorandum no. DE.54/02/ DDE/SW-B/Vig/05/73 dated 16-01-2006, was issued to Sh. Ravi Shankar (TGT, N. Sc.) (hereinafter referred as CO) by the Disciplinary Authority (DE) and the following charges have been leveled against him.
Article-I That Sh. Ravi Shankar, TGT (N. Sc.) while working in G. Co. Ed. SS. Mahavir Enclave had committed sexual abuse against girl students of Class-VI and VIII inside classroom during his periods.
Article-II That the said Sh. Ravi Shanker had misused his official position and blackmailed the girl students of his assigned classes by making threatening remarks that he will make them fail in exams if they object to his physical advance towards them.
Article-III That the said Sh. Ravi Shankar had failed to perform his duties sincerely and diligently by not teaching properly in his classes.
Hence, Sh. Ravi Shankar, TGT (N. Sc.) has committed gross moral misconduct and has failed to maintain absolute integrity and devotion to duty. He has, therefore, acted in a manner unbecoming of a Government servant and in doing so, he has violated Rule 3 (1) and 3C (1) of the CCS (Conduct) Rules, 1964, thereby rendering him liable to action under Rule 14 of the CCS (CCA) Rules, 1965.
2.2 Statements of imputations under Annexure II of the charge sheet are as under:-
Article-I That Sh. Ravi Shanker, TGT (N. Sc.) while working in G. Co. Ed. SS, Mahavir Enclave, has physically molested girl student of the school during his classes as stated by the girl students of class VI and VIII. That, the indecent acts of the said Sh. Ravi Shankar made the girls feel so embarrassed, disgraced and harassed to the extent that they have lost interest in attending his classes. That instead of being a role model and living example to his students, the said Sh. Ravi Shankar has acted in a manner unbecoming of Government servant. The matter has also been enquired into by the School Level and District Level Committee for Prevention of Sexual Harassment against Woman, and the allegations of the said girl students have been found to be true.
Article-II That the said Sh. Ravi Shankar had threatened the girl students of his class that he would make them fail in exams if they objected to his physical advances. He had indulged in blackmailing and misused his official position against the innocent girl students.
Article-III That the students of the school have stated that the said Sh. Ravi Shankar was not teaching properly. That instead of taking his classes and teach his students sincerely. Sh. Ravi Shankar wasted his time by indulging in indecent activities against innocent girl students. He has, therefore, failed in his prime duty of imparting education to students and has shown lack of devotion of duty. xx xx xx xx
11. Finding in respect of each charge:
11.1 Article I As per the discussion above, the charge under this Article cannot be established and hence not proved. 11.2 Article II The charge under this Article cannot be established and hence not proved.
11.3 Article III The charge under this Article cannot be established and hence not proved.
3. The disciplinary authority disagreed with the inquiry report and issued disagreement note dated 18.11.2011. In response to the note, the applicant made a detailed representation dated 9.12.2011. After considering the representation, the disciplinary authority, i.e., Director of Education passed order dated 8/12.6.2012 inflicting the penalty of dismissal from service upon the applicant. The appeal preferred by against the said order was dismissed by the Chief Secretary in terms of the order dated 16.4.2013. Thus the applicant filed the present Original Application praying therein:-
(i) Quash and set aside the disagreement note dated 18.11.2011 (Annexure-A-1), order of dismissal dated 12.06.2012 (Annexure-A-2) and the order of Appellate Authority dated 10.08.2013 (Annexure-A-3).
(ii) direct the respondents to reinstate the applicant with all benefits like salary seniority etc. and also decide the suspension period as spent on duty for all intents and purposes;
(iii) award the cost of the application/petition;
(iv) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.
4. The Original Application was filed through Mr. S. K. Gupta, Advocate and the said Advocate represented the applicant on 25.7.2014 and made submissions to some extent. Since one of the salient arguments put forth by learned counsel for applicant was that the sole basis for disagreement note of the disciplinary authority was the finding of the School Level Committee and the Sexual Harassment Committee, we directed the respondents to produce the record. The record was made available by the respondents on very next date of hearing, i.e., on 14.8.2014. Nevertheless, on said date, Honble P.K. Basu, Member (A) recused himself from hearing the matter. On the next date of hearing, the applicant appeared in person and submitted that Mr. S.K. Gupta, Advocate had withdrawn his vakalatnama and he preferred to argue the matter in person. On 5.9.2014, 26.9.2014, 13.11.2014 and 26.11.2014, both the applicant and the learned counsel for respondents sought adjournments. However, on 13.11.2014 Mr. S K Gupta, Advocate again entered appearance on behalf of the applicant and joined the learned counsel for respondents in making a request for adjournment. On 26.11.2014, Mr. R K Sehrawat, Advocate entered appearance on behalf of the applicant only to concede the request made on behalf of the respondents for adjournment. On 5.12.2014, the applicant was represented by Mr. S.K. Gupta, Advocate. Again on 7.1.2015, the applicant appeared in person to make request for adjournment on the ground of absence of his counsel. On 5.2.2015, again the applicant made request for adjournment for want of his counsel. On 13.3.2015, Mr. Amit Chawla, Advocate appeared as proxy counsel for Mr. S K Gupta, Advocate and joined learned proxy counsel for respondents to seek adjournment. On 26.3.2015, both the applicant and learned counsel for respondents made joint request for adjournment. On7.4.2015, Mr. Susheel Kumar, Advocate appeared as proxy counsel for Mr. R.K. Sehrawat, Advocate to join the learned counsel for respondents to make request for adjournment. On 21.4.2015, the applicant appeared in person and sought a pass-over on the ground that arguing counsel was on his way. On 29.4.2015, Mr. R.K. Sehrawat, Advocate made request for adjournment. On 27.5.2015, the applicant appeared in person and made a request for adjournment. On 29.5.2015, Dr. Ch. Shamshuddin Khan, Advocate appeared as proxy for Mr. R K Sehrawat, Advocate and made a request for listing the matter before a Bench, which passed the Order dated 25.7.2014.
5. Normally there may not be any need to reflect the miscellaneous proceedings recorded in a case in final Order but in the present case we had to do so only because the situation created was quite weird. Nevertheless, the applicant had filed written arguments enclosing therewith certain judgments of the Honble Supreme Court. The salient plea raised in the written arguments is that the disagreement note is not tentative but final and does not contain any reasons as to why and how the reasoning given by the inquiring authority to exonerate the applicant is not tenable.
6. In support of the argument, the applicant relied upon the judgment of Honble Supreme Court in the case of Lav Nigam v. Chairman & MD, ITI Limited & another, (2006) 9 SCC 440. In the said case, following the view taken in Yoginath D. Bagde v. State of Maharashtra & another, (1999) 7 SCC 739, it could be viewed that before arriving at a final view to differ with the findings of the inquiry officers report, the employee should be given show cause notice. In Yoginath D. Bagdes case (supra), it was held that while not accepting the inquiry report, the disciplinary authority should give a notice to show cause to delinquent indicating therein the tentative reasons for not accepting the inquiry report. In fact, in the show cause notice, which is technically called disagreement note, the final conclusion regarding disagreement should not be recorded. Paragraph 12 of the judgment in Lav Nigams case (supra) reads thus:-
12. This view has been reiterated in Yoginath D. Bagde v. State of Maharashtra(1999) 7 SCC 739 : 1999 SCC (L&S) 1385. In this case also Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The Court said: (SCC p. 758, para 29) "But the requirement of 'hearing' in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the 'TENTATIVE' reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with."
(See also State Bank of India v. K.R Narayanan Kutty(2003) 2 SCC 449 : 2003 SCC (L&S) 185.)
7. In the present case, we find that the disciplinary authority could record final disagreement in the show cause notice (disagreement note) itself. For easy reference, disagreement note is reproduced hereinbelow:-
Whereas, Shri Ravi Shankar, TGT (N. Sc.) was charge sheeted u/r 14 of CCS (CCA) Rules, 1965 vide Memorandum No. DE.54/02/DDE/SWB/Vig/05/73 dated 16/01/2006 for the following articles of chargeL Article-I That Shri Ravi Shankar, TGT (N. Sc.) while working in G. Co.-Ed. SS. Mahavir Enclave had committed sexual abuse against girl students of Class-VI and VIII inside classroom during his periods.
Article-II That the said Shri Ravi Shanker had misused his official position and blackmailed the girl students of his assigned classes by making threatening remarks that he will make them fail in exams if they object to his physical advance towards them.
Article-III That the said Shri Ravi Shankar had failed to perform his duties sincerely and diligently by not teaching properly in his classes.
Hence, Shri Ravi Shankar, TGT (N. Sc.) has committed gross moral misconduct and has failed to maintain absolute integrity and devotion to duty. He has, therefore, acted in a manner unbecoming of a Government servant and in doing so, he has violated Rule 3 (1) and 3C (1) of the CCS (Conduct) Rules, 1964, thereby rendering him liable to action u/r 14 of the CCS (CCA) Rules, 1965. And whereas, Smt. Savita Drall, Principal, SKV, Mata Sundri Road, New Delhi was appointed as Inquiring Authority vide Order No. DE.7/SW-B/03/NGV/2006/639-47 dated 24/02/2010 and Smt. Urvashi Gupta, Vice Principal, SKV No.1, C-Block, Yamuna Vihar, Delhi was appointed as Presenting Officer vide Order No.DE.7/SW-B/03/NGV/2006/1197-1205 dated 20/04/2010. The Inquiring Authority has submitted inquiry report dated 14/09/2011 concluding all the three articles of charge as not proved.
And whereas, I have carefully gone through the record adduced before me, including inquiry report in respect of disciplinary procee4dings against Shri Ravi Shankar, TGT (N. Sc.). Prima Facie, it appears from the inquiry report that the Inquiring Authority has lent ore credence to the averments made by the Charged Officer and not given adequate weightage to the documentary evidence against the charged officer and presented by the Presenting Officer. The Inquiry Officer failed to evaluate the listed documents and other material evidence properly before arriving to the conclusion.
The Inquiring Authority has not given due credit to the finding of the School Level Committee or the minutes of the District Level Sexual Harassment Committee, the proceedings of which were held immediately after the incident, and wherein it has been duly recorded and signed by the members of the committee as well as the parents that the complaint made against the teacher are true and made without any pressure of any kind.
Now, therefore, I Diwan Chand, being the Disciplinary Authority in this case, disagree with the findings of the Inquiring Authority and hereby direct the said Shri Ravi Shankar, TGT (N. Sc.) to submit his written representation, if any within 10 days of the receipt of this Disagreement Note, failing which the matter will be processed without any further notice/information to him in this matter. A copy of the Inquiry Report is also enclosed herewith. In view of the judgment of Apex Court and the conclusion recorded in the show cause notice (disagreement note), we are of the considered view that the impugned orders are not sustainable and are liable to be set aside on this ground alone.
8. In the wake, we do not propose to examine any other ground raised by the applicant. The disagreement note/ show cause notice as well as the order of penalty and rejection of appeal passed by the disciplinary and appellate authorities are quashed and set aside. The respondents are directed to reinstate the applicant in service within eight weeks from the date of receipt of a copy of this Order. It would be open to the respondents to proceed against the applicant after issuance of proper show cause notice/ disagreement note, having due regard to the law enunciated by the Apex Court in Yoginath D. Bagdes case (supra). The decision in respect of intervening period of suspension and removal would be taken by the disciplinary authority in accordance with the Rules. The respondents may also avoid giving posting to the applicant in any girls school.
9. The Original Application stands disposed of. No costs.
( V.N. Gaur ) ( A.K. Bhardwaj ) Member (A) Member (J) /sunil/