Central Administrative Tribunal - Lucknow
Dr. Hazari Lal A/A 56 Years Son Of Lt. Sri ... vs Kendriya Vidyalaya Sangathan 18 on 6 January, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL LUCKNOW BENCH LUCKNOW Original Application No. 15/2013 Order Reserved on 16.12.2016 Order Pronounced on 6.1.2016 HONBLE MR. NAVNEET KUMAR, MEMBER(J) HONBLE MS. JAYANTI CHANDRA, MEMBER(A) Dr. Hazari Lal a/a 56 years son of Lt. Sri Munnal Lal r/o 59, Kailash Nagar, Jajmau, Kanpur .......Applicant By Advocate: Sri V.K.Srivastava Versus 1. Kendriya Vidyalaya Sangathan 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-16, through its Chairman. 2. Deputy Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, Sector J, Aliganj, Lucknow. 3. Principal , Kendriya Vidyalaya, Kanpur Cantt (II Shift), Kanpur. 4. Deleted Respondents By Advocate: Sri Surendran P ORDER
HONBLE MR. NAVNEET KUMAR, MEMBER(J) The present Original Application is preferred by the applicant under Section 19 of the AT Act, 1985 with the following reliefs:-
i) quash/set aside the order dated 20.8.2011 passed by the opposite party no. 3, the photo copy of which is contained in the annexure No.1 to the original application.
ii) quash/set aside the order dated 24/26.9.2012 passed by the opposite party no. 2 the photo copy of which is contained in the annexure no. 2 to the original application.
iii) deleted.
2. The brief facts of the case are that the applicant joined the respondents organization as Trained Graduate Teacher in the year 1983 and during the service tenure, the applicant remained posted at number of places and subsequently, the applicant got promoted as PGT (BIO) on 26.8.2008, while he was posted in Kendriya Vidyalaya (in short K.V.) Raksha Vihar, Kanpur. Learned counsel for applicant argued and pointed out that the applicant is also the President of All India Kendriya Vidyalaya Teachers Association, Lucknow Region and also Secretary, Staff side of the committee constituted under the scheme of Joint Consultative Machinery of the KVS which consists of five members of office side and five members of staff side. Being the President of All India Kendriya Vidyalaya Teachers Association, Lucknow Region, the applicant made certain complaints against the O.P. No. 3 regarding his humiliating and arrogant behavior and also tried to raise the voice on behalf of the teachers of the institutions, therefore, the officers went angry and annoyed and became prejudice with the applicant. Accordingly, in2011, a memorandum is served upon the applicant. The applicant submitted the reply to the said memorandum.
3. The learned counsel for applicant alleged that without recording any reason and without considering the reply submitted by the applicant, the punishment order dated 15.4.2011 on the basis of assumption and presumption, rejected the reply of the applicant by a single sentence. Apart from this, it is also argued and submitted that the applicant tried to submit the appeal against the order dated 15.4.2011 but the same was not accepted by the principal on account of his arrogant and ante approach against the applicant.
4. Subsequently, the applicant was again issued another memorandum indicating therein that without submitting his leave application, the applicant remained un-authorisedly absent and enjoyed leave which amounts to dereliction of duty, breach of orders, failure to maintain devotion to duty, gross indiscipline and unbecoming of KVS employee. The applicant was directed to submit the reply in which he denied all the charges and has also indicated that being an office bearer, he is entitled for special casual leave for 20 days and the application so submitted by him was not considered and authorities imposed the punishment order.
5. Learned counsel for applicant has categorically pointed out and submitted that applicant submitted the appeal and appellate authority has also passed the orders but neither the disciplinary authority nor the appellate authority considered the averment made by the applicant in his reply or in the appeal and passed the orders in an arbitrary manner and orders so passed by them are non-speaking order, as such it requires interference by this Tribunal. Not only this, it is also argued and submitted that there is no loss to the Govt. as such impugned order of minor penalty of recovery from his pay is unjustified and is liable to be struck down.
6. On behalf of the applicant, certain decision were cited such as:-
i) Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and others reported in (2009) 4 SCC 240.
ii) Mahaveer Prasad Verma Vs. Central Administrative Tribunal, Lucknow and others reported in 2013 (31) LCD 351.
iii) O.A. No. 528/2010 (decided on 5.8.2015) Mohd. Yunus Vs. Union of India and others (CAT Lucknow Bench)
7. Learned counsel for applicant has categorically indicated that the appellate authority is under obligation to give reasons while confirming the order of disciplinary authority. It is also indicated by the learned counsel for applicant that the order passed by the Disciplinary authority as well as appellate authority are non-speaking orders as such it requires interference by this Tribunal.
8. On behalf of respondents, detailed reply is filed and through reply, it is indicated by the respondents that K.V.S. is an autonomous body duly set up by the Ministry of Education, Govt. of India and registered as a Society under Society Registration Act. The respondents submitted that the applicant is the President of All India Kendriya Vidyalaya Teachers Association, Lucknow Region and Secretary Staff side but he is high level problem creator for K.V.S. and he normally use to send anonymous complaints against the principal to the higher authorities of KVS and also to the Minister , Human Resources and Development and the Chairman Hunan Rights Commission and he never got his leave sanctioned in advance and did not submit any attendance certificate from the competent authorities. Like wise he also wants that the entire staff should be given liberty of same nature.
9. It is also indicated by the learned counsel for respondents that applicant without submitting any application for leave for 15.7.2011 remained himself unauthorisedly absent from college and indicated that there was a meeting of the Union as such he may be granted leave for 15.7.2011. It is also submitted by the learned counsel for respondents that applicant is in habit of submitting complaints almost every day on one or the another pretext which used to affect the vidyalaya work, therefore, he was advised in writing to send the copies of the representation directly to the concerned authorities.
10. Not only this, it is also argued and submitted by the learned counsel for respondents that principal is fully aware about the number of special casual leave admissible to office bearers of recognized service association but it does not mean that special casual leave should not got sanctioned in advance and attendance certificate is also not required after coming back from leave. The applicant neither got the special casual leave sanctioned in advance nor submitted proper attendance certificate from the competent authority, as such charge sheet was served upon the applicant on 25.7.2011 indicating therein that the applicant did not inform the authority about his absence on 15.7.2011. He also not applied any leave and asked on 25.7.2011 for leave application of 15.7.2011, he denied to submit any leave application and insisted for special casual leave without attendance certificate. The applicant submitted the reply and after considering the same, disciplinary authority passed the order of recovery of pay for one day and accordingly minor penalty was imposed upon the applicant.
11 The applicant submitted the appeal to the appellate authority and appeal so submitted by the applicant was also considered and decided by the appellate authority through order dated 24/26.9.2012 confirming the order of minor penalty imposed by the disciplinary authority and disposed of the appeal of the applicant. Apart from this, it is also argued and submitted by the learned counsel for respondents that since there is no procedural irregularities in the enquiry, as such it does not require any interference by this Tribunal and the O.A. is liable to be dismissed.
12. On behalf of the applicant Rejoinder Reply is filed and through rejoinder reply, mostly the averments made in the O.A. are reiterated and denied the contents of the counter reply.
13. Heard the learned counsel for parties and perused the records.
14. The applicant was initially appointed in the respondents organization in 1983 as TGT and subsequently he was promoted as PGT. During the said period, the applicant was posted at number of places. While he was posted at Kanpur, he was served with a memorandum dated 25.7.2011 indicating therein that he did not inform to the authorities about his absence on 15.7.2011 even on telephone nor he applied for any leave and when he was asked to submit leave application on 21.7.2011, he denied to submit the same and insisted for special casual leave without any attendance certificate from the Principal Kendriya Vidyalaya Lucknow and Director, Census, U.P. Lekhraj Dolloar, Indira Nagar, Lucknow, as such it is indicated that why his unauthorized absence should not be marked as Dies non on 15.7.2011.
15. In pursuance of the said memorandum, the applicant submitted the reply on 4th August, 2011 indicating therein that he has applied for special casual leave on 24.7.2011 before leaving the vidyalaya but neither principal nor vice principal or any of the office staff was present in the office and finally he left the application on the table of the vice principal. Apart from this, it is also indicated by the applicant in his reply that he is also the President of All India Kendriya Vidyalaya Teachers Association and also Secretary , Staff Side of the committee constituted under the scheme of Joint Consultative Machinery of K.V.S.
16. After considering the reply so submitted by the applicant the disciplinary authority passed an order on 20.8.2011 wherein it is mentioned that the competent authority under Rule 16 of CCS (CCA) Rules, 1965, after considering the representation so submitted by the applicant and on the basis of facts and circumstances of the case, the disciplinary authority came to the conclusion that applicant failed to maintain devotion to duty and created gross indiscipline therefore, recovery from his pay for 15.7.2011 be made effective with immediate effect.
17. Accordingly, the disciplinary authority imposed the minor penalty upon the applicant. Thereafter, the applicant submitted the appeal to the appellate authority in which it is also indicated that he has already applied special casual leave on14.7.2011 but at the time of leaving vidyalaya, neither the principal nor the vice principal or any staff of the office was present as such he left the same on the table of Vice Principal and left office. Appellate authority after considering the entire material available on record, confirmed the minor penalty imposed upon the applicant and disposed of the appeal . The applicant feeling aggrieved by the action of the respondents, filed the present O.A.
18. It is to be seen as to whether the applicant has submitted the application before the competent authority or not and whether he proceeded on leave with the prior approval of the competent authority or not.
19. The bare perusal of the entire record shows that even if the principal or vice principal was not available in the office, he can got it received in the dispatch counter or it should have been given to the office staff but the applicant has not done so and while coming back from leave, he has also not taken care whether leave application is approved by the competent authority or not. Apart from this, it is also to be seen that to what extent this Tribunal can interfere in the matter pertaining to the disciplinary authority.
20. The applicant was given memorandum. He submitted the reply and after considering the reply of the applicant, the disciplinary authority passed the punishment order. Apart from this, appeal so submitted by the applicant was also considered by the appellate authority and both the orders of the disciplinary authority as well as appellate authority are speaking order as such it cannot be said that the orders are non-speaking order.
21. Be that as it may. The Honble Apex Court in the case of B.C. Chaturvedi v. U.O.I. & ors. reported in 1995(6) SCC 749 has been pleased to observe that the scope of judicial review in disciplinary proceedings the Court are not competent and cannot appreciate the evidence.
22. In another case the Honble Apex Court in the case of Union of India v. Upendra Singh reported in 1994(3)SCC 357 has been pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Honble Apex Court has been pleased to observe as under:-
In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.
23. Not only this the Honble Apex Court has even observed in regard to scope of judicial review as well as in regard to the quantum of punishment and in the case of State of Rajasthan v. Md. Ayub Naaz reported in 2006 (1) SCC 589. The Honble Apex Court has been pleased to observe as under:-
10. This Court in Om Kumar v. Union of India while considering the quantum of punishment / proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor has any irrelevant fact been taken into account nor any illegality committed by the authority nor was the punishment awarded shockingly disproportionate. The punishment was awarded in the instant case after considering all the relevant materials, and, therefore, in our view, interference by the High Court on reduction of punishment of removal was not called for.
24. The Honble Apex Court in another decision of State of UP v. Saroj Kr. Sinha reported in 2010 (2) SCC 772 has been pleased to observe that the employee should be treated fairly in any proceedings which may culminate in punishment being imposed on him. In the instant case the entire proceedings were carefully considered by the disciplinary authority and full opportunity is given to the applicant in conducting the enquiry and applicant also submitted the reply etc.
25. In the case of Union of India Vs. Dwarka Prasad Tiwari reported in 2007(1) SCC (L&S) 135, the Honble Apex Court has been pleased to observe that Normally only where the punishment is shockingly disproportionate to his conduct, court may direct the authority to reconsider the punishment imposed.
26. The case law so cited by the applicant are in regard to speaking order and the bare perusal of the order passed by the disciplinary authority as well as appellate authority are speaking order, as such the case law so cited by the applicant are not applicable in the present case.
27. Apart from this, as per rules, the office bearers of the recognized unions are entitled for special casual leave for 20 days but the same requires sanction before it is availed. In the instant case, the applicant failed to indicate any order of the competent authority that the application so submitted by the applicant was duly received by the authorities and sanctioned as such it is established that the applicant proceeded on leave without submitting any leave application.
28. Considering the observations made by the Honble Apex Court as well as on the basis of facts of the case, we do not find any reason to interfere in the present O.A. Accordingly, O.A. is dismissed. No order as to costs.
(JAYATI CHANDRA) (NAVNEET KUMAR) MEMBER (A) MEMBER(J) HLS/-