Central Administrative Tribunal - Delhi
Neera Sharma W/O Adarsh Kumar Sharma vs Vice-Chairman on 23 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3994 of 2011 Order reserved on : 9th May, 2012 Pronounced on : 23rd May, 2012 HONBLE SHRI JUSTICE S. C. SHARMA, ACTING CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Neera Sharma W/o Adarsh Kumar Sharma, R/o 312, B-4, Paryatan Vihar, Vasundhra Enclave, Delhi-110096. Applicant ( By Shri L. R. Khatana, Advocate ) Versus 1. Vice-Chairman, Kendriya Vidyalaya Sangathan & Additional Secretary to Govt. of India, Department of Higher Education, Ministry of Human Resource Development, C-Wing, Shastri Bhawan, New Delhi-110001. 2. Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110062. 3. Shri A. K. Garde, Inquiring Authority, C/o Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110062. 4. Central Vigilance Commission through Chief Vigilance Commissioner, Satarkta Bhavan, GPO Complex, Block-A, INA, New Delhi. Respondents ( By Shri S. Rajappa, Advocate ) O R D E R Justice S. C. Sharma, Acting Chairman:
Instant Original Application has been instituted for the following reliefs:
A) That the respondents be directed to produce the relevant records pertaining to the initiation of the impugned disciplinary proceedings and imposition of the impugned penalty, for perusal of this Honble Tribunal.
B) That the impugned orders be held as illegal, arbitrary, perverse and discriminatory and be quashed and set aside and the respondents be directed to give all the consequential benefits including arrears of pay and allowances etc. to the applicant and pay 12 per cent interest on all the consequential benefits, within the prescribed time frame.
C) Award costs.
D) Pass any such other or further order or direction as this Honble Tribunal may deem fit and proper in the facts and circumstances of this case.
2. Pleadings of the parties in nutshell are as follows:
It has been alleged by the applicant that in the year 1981 she had joined as PGT Chemistry in the Kendriya Vidyalaya Sangathan (hereinafter to be referred as KVS). In July, 1995 the applicant was selected and appointed as Principal in the KVS in direct recruitment quota, and there has been excellent and unblemished record of service of the applicant. In the year 2003, when the applicant was posted as Principal, Kendriya Vidyalaya (KV, for short), Noida, the KVS sanctioned the opening of a new KV at Greater Noida, District Gautam Budh Nagar (UP) under the Civil Sector with effect from 01.04.2003. Vide sanction order dated 04.04.2003, the Assistant Commissioner, KVS, Delhi Region, accorded sanction of the Commissioner for construction of seven temporary class rooms along with toilets at the newly opened KV at Greater Noida, and authorized the Principal, KV, Greater Noida to take up the construction work as per the letter dated 22.02.2003. It was inter alia mentioned that the work was to be completed by 31.03.2003. Vide letter dated 16.12.2003 the total number of class rooms was revised to 14. On 04.04.2003, Shri R. S. Chauhan, Principal, KV, Greater Noida wrote a letter to the Assistant Commissioner, KVS, Delhi Region and Chairman, KV, Geater Noida, proposing formation of a committee for surveying market for calling quotations for building material, labour charges etc. It was also mentioned that to complete the work as early as possible, urgent tender could not be called, as per the procedure laid down at page 131 chapter 17 of the accounts code, and instead note may be adopted for calling the quotations/procuring the material and a committee be formed, as no member had joined the Vidyalaya. Hence a committee for arranging quotations was constituted comprising Ms. Siddiqui, EO; Ms. N. Sharma (the applicant) and Shri R. S. Chauhan. It is the case of the applicant that she came into picture in order to assist the Principal, KV, Greater Noida in procuring quotations, preparing comparative statement of rates and verifying the bills of materials etc. On 04.05.2005, as the ill luck would have it, the Greater Noida area was struck by a very high velocity windstorm, which caused extensive damage to the public property and the fury of the storm was so severe that a number of trees were uprooted and so much so, three electricity towers of 132 KV high voltage line fell down, and the storm also damaged the asbestos sheets roof of the temporary rooms constructed for KV, Greater Noida. Large-scale damage was caused by the storm in the area, as also reported in the newspapers. It is further alleged that the applicant was shocked to receive a memorandum dated 28/29.07.2005 making various false and baseless allegations against her attributing alleged acts of omission and commission for which she was not at all responsible. A point-wise reply was submitted by the applicant to the said memorandum, but nothing was acted upon by the respondents in the matter as the applicant was not responsible even in the least for any act alleged against her. That without considering the reply of the applicant, a major penalty charge-sheet was issued on 09.01.2007, to which also the applicant submitted a detailed reply. It was stated by the applicant that the cheques were not signed by her for making payment and that she was not a member of the so-called supervisory committee and if she might have been appointed a member of the supervisory committee, then she must have been allowed to go on temporary duty to the Greater Noida and allowances etc. as may be admissible, should have been paid to her. No order regarding including the applicant in the supervisory committee was served upon the applicant. Shri A. K. Garde was appointed as the enquiry officer. The applicant moved an application for change of the enquiry officer and a request was also made for supplying her relevant documents, but the enquiry was hurriedly concluded, and the disciplinary authority instead of considering the said report and supplying copy thereof to the applicant, straightway forwarded the enquiry report to CVC for second stage advice, and the respondents in doing so not only violated the procedural law and instructions but also violated the principles of natural justice, and denied the applicant opportunity to submit representation against the findings of the enquiry officer so that the CVC could have had the benefit of the comments of the applicant while giving its advice. After obtaining the advice of CVC, a copy of the enquiry report was supplied to the applicant. It is alleged that the enquiry officer also violated the principles of natural justice. Several irregularities were committed by the enquiry officer in the enquiry. That wrong inferences were drawn against the applicant and the report of the enquiry officer is contradictory, but still the disciplinary authority imposed the penalty upon the applicant in a mechanical manner, and her appeal was also dismissed arbitrarily, illegally. That the order of the disciplinary authority imposing punishment and the order of the appellate authority are liable to be quashed. Hence, the OA.
3. The respondents have contested the case and filed their counter reply. It has also been alleged that pursuant to the first stage advice tendered by CVC vide office memorandum dated 14.11.2006, common disciplinary proceedings were initiated against Mrs. A. N. Siddiqui, former Education Officer, KVS, RO, Delhi; Shri R. S. Chauhan, former I/C Principal, KV, Greater Noida; and Mrs. Neera Sharma (the applicant) former Principal, KV, Noida, and all of them were charge-sheeted for the alleged misconduct committed by them in construction of the structure. The applicant submitted her written statement of defence dated 30.07.2007, pleading not guilty of the charges. On refusal of the charges, Shri A. K. Garde, Secretary (Retd.), CVC and Shri Ikram-ul-Haq, Principal, KV, AGCR Colony, Delhi were appointed as enquiry officer and presenting officer respectively to enquire into the charges, vide order dated 19.09.2007. The enquiry officer conducted the enquiry under common proceedings and submitted his report to the disciplinary authority vide letter dated 30.03.2009. The enquiry report along with the tentative view of the disciplinary authority was sent to CVC on 19.05.2009 for tendering its second stage advice, which the CVC tendered vide memorandum dated 07.09.2009 to the effect that in view of the findings of the enquiry officer and the comments of the disciplinary authority, a stiff major penalty be imposed upon the applicant and her co-delinquents. It is pleaded that under rule 15 of the CCS (CCA) Rules, 1965, copy of the enquiry report was provided to the applicant along with copy of the second stage advice of CVC for submission of her representation, and that the applicant submitted her representation on 03.10.2009. Thereafter the applicant approached this Tribunal by filing OA No.2762/2009, which was disposed of on 21.07.2010 with certain directions. In pursuance of the directions of the Tribunal, another opportunity was provided to the applicant to submit her representation, and opportunity was also provided to her for personal hearing as also to submit another representation. As per advice of CVC, submissions of the applicant and the observations made by the Tribunal, the disciplinary authority arrived at a finding that the applicant had failed to discharge her responsibility as a member of the supervisory committee in the construction of KV, Greater Noida. The authority was also of the tentative view that the applicant deserved major penalty of reduction of her pay by five stages from Rs.29800 + 7600 Grade Pay to Rs.24650 + 7600 Grade Pay in the time scale of pay of Rs.15600-39100 + Grade Pay Rs.7600/- for a period of five years with cumulative effect. It is pleaded that concurrence was also given by CVC after considering the entire facts in order to impose the penalty, and accordingly the penalty was imposed, and the appeal preferred by the applicant was also dismissed by the appellate authority by a reasoned and speaking order. That whatever is alleged in the OA is wrong and the OA lacks merit and is liable to be dismissed.
4. In response to the counter reply of the respondents, rejoinder affidavit has also been filed on behalf of the applicant, and in the rejoinder the facts which have been alleged in the OA have been reiterated and it has also been alleged that no misconduct was committed by the applicant, and that no evidence was adduced by the respondents to prove the misconduct. It is alleged that no order was issued on 01.05.2003 appointing the applicant as member of the supervisory committee, and hence there was no question of the applicant being a member of the supervisory committee, and the order dated 01.05.2003 is mala fide and fraudulent. That whatever has been alleged in the counter reply is wrong.
5. We have heard Shri L. R. Khatana, Advocate, for the applicant and Shri S. Rajappa, Advocate, for the respondents, and perused the entire facts of the case. There are certain admitted facts as would establish from the records. It is a fact that vide letter dated 04.04.2003, Shri S. Modwal, Assistant Commissioner, KVS (Delhi Region) accorded sanction for construction of seven temporary class rooms along with toilets at the newly opened KV at Greater Noida, and authorized the Principal, KV, Greater Noida to take up the construction work. Letter dated 04.04.2003 (Annexure A-6) is on record, and it has been mentioned in the said letter that sanction of the Commissioner, KVS was being accorded for construction of seven temporary class rooms along with toilets at the newly opened KV at Greater Noida. Accordingly, the Principal, KV, Greater Noida was authorized to take up the construction work as per letter dated 22 02.2003 for construction of similar nature of work for expansion of Kendriya Vidyalayas. It has also been provided that the work was to be completed by 31.03.2003. It is surprising that the Assistant Commissioner, KVS (Delhi Region) communicated the order of sanction of the Commissioner for construction of seven temporary class rooms at KV, Greater Noida dated 22.02.2002, vide letter dated 04.04.2003, and at the same time it was also expected from the Principal, KV, Greater Noida that the work should be completed by 31.03.2003 positively. How it was possible to complete the work by 31.03.2003 when the order of the Commissioner sanctioning construction of seven temporary class rooms itself was conveyed on 04.04.2003. It is not practicably possible to complete the work by 31.03.2003. The letter dated 22.02.2003 has also been placed on records with Annexure A-6. It is also an admitted fact that vide letter dated 16.12.2003, the total number of class rooms to be constructed was revised to 14. Copy of the letter dated 16.12.2003 has also been placed on records with Annexure A-6, wherein it has been provided that KV, Greater Noida had been upgraded from Class V to Class IX in the current session, due to which additional class rooms were urgently required. These letters were addressed to the Principal, KV, Greater Noida, and these have no reference of Principal, KV, Noida, i.e., the applicant.
6. A report was submitted by Shri R. S. Chauhan, Principal, KV, Greater Noida to the Assistant Commissioner, Chairman, KV Greater Noida/Delhi Region to the effect, Therefore, to complete the construction work as early as possible urgent tenders cannot be called, as per the procedure laid down on page 131 chapter 17 of account code instead note may be adopted for calling the quotations/procuring the material, a committee may be formed, as no member has joined the Vidyalaya. A committee was constituted by the Assistant Commissioner on this letter of Shri R. S. Chauhan, comprising Ms. Siddiqui, EO, Ms. N. Sharma (the applicant) and Shri Chauhan. It is vide this letter dated 04.04.2003 that the applicant came into picture. Earlier to that, on the letter of Principal, KV, Greater Noida, the Assistant Commissioner exempted from following the procedure laid down at page 131 chapter 17 of the accounts code of calling urgent tenders to complete the work, and instead for calling the quotations/procuring material, a committee was formed. When Shri R. S. Chauhan, Principal, KV Greater Noida submitted a note to the Assistant Commissioner to exempt the procedure of calling urgent tenders, then the applicant has nothing to do with adopting of the procedure as provided under the rules, and the applicant came into picture after approval of the Assistant Commissioner. The first article of charge against the applicant was to the effect that proper procedure was not followed by the committee members of calling quotations as laid down in the accounts code articles 170 to 179. The enquiry officer commented on Article-I of charge as regards the applicant, The decision to dispense with tenders was erroneously taken by R. S. Chauhan with the approval of Modaval, AC to which Neera Sharma was not a party but Neera Sharma did not point out that as per procedure, open tenders need to be called. Instead, by signing, quotations, comparative statements and certifying receipt of materials in good condition, she acquiesced in the action to dispense with open tenders and acted in a casual and routine manner. Under these circumstances, the applicant has also been held guilty for not pointing out the procedure as laid down in the accounts code. It has been argued by the learned counsel for the applicant that when the Assistant Commissioner had already dispensed with the very adopting of the procedure as provided in the accounts code on the letter written by Shri R. S. Chauhan, Principal, KV Greater Noida, and on this letter a committee was formed for supervising the purchase work, there would have been no occasion for the applicant to have pointed out the procedure prescribed in the accounts code. In our opinion, the conclusion drawn by the enquiry officer in this connection against the applicant was perverse, and it is devoid of any merit. There was no material to substance this charge because the competent authority, i.e., Assistant Commissioner, had already allowed dispensing with the prescribed procedure on the letter written by the Principal, KV Greater Noida, then the applicant had no business to point out that the procedure provided in the accounts code was to be followed. On the face of it, the conclusion drawn by the enquiry officer is contradictory and devoid of merit.
7. It has also been argued by the learned counsel for the applicant that the order dated 01.05.2003 was fabricated in order to show the applicant as a member of the supervisory committee. Annexure A-15 is copy of an office order dated 01.05.2003, and according to the contents of this order, a committee was constituted comprising Mrs. A. N. Siddiqui, Education Officer, RO Delhi; Mrs. Neera Sharma (the applicant), Principal, KV Noida; and Shri R. S. Chauhan, Principal, KV, Grater Noida, as members of the supervisory committee in order to supervise the work of construction in respect of the newly opened KV at Greater Noida. It has specifically been alleged by the applicant that this order had never been communicated or served upon her, and according to her no supervisory committee was constituted by the respondents and that she was not entrusted with and involved in supervision work of the construction in respect of the newly opened KV at Greater Noida, and that this document has falsely been manufactured, although it has been stated by the respondents in the counter reply that a supervisory committee was constituted on 01.05.2003 and the order was served upon the applicant, and that the applicant was supposed to supervise the construction work, and she had not discharged her duties properly in supervising the work of construction, hence she committed misconduct. A letter dated 27.05.2011 is on record at page 122 of the paper book. This letter was issued by one Shri V. K. Srivastava, Assistant Commissioner, KVS (Delhi Region) regarding verification of two letters issued by RO, Delhi. It has been mentioned in the letter, As per dispatch register maintained by this office during 2003, no such office order was issued from this office to Smt. AN Siddiqui, EO, KVS, RO, Delhi/Mrs. Neera Sharma, Principal, KV NOIDA/Shri RS Chauhan, Principal, KV Greater NOIDA. Moreover no records confirming the acknowledgement of receiving the copy of said order by Shri RS Chauhan, Mrs. Neera Sharma & Mrs. AN Siddiqui are available in the record. This is the own letter of the Assistant Commissioner, KVS (Delhi Region), which specifically alleged that no record was available in the office showing dispatch or acknowledgement of receipt of the order. Hence, it cannot be said that the order dated 01.05.2003 constituting a supervisory committee was served upon the members of the so-called supervisory committee. Whereas the enquiry officer was of the opinion that a supervisory committee was constituted and the applicant being a member of the supervisory committee failed to check the quality of the material. It has been commented by the enquiry officer, Having discussed the evidence as above, I would also observe that the Inquiry committee has made oblique references to quality of materials which are not based on any organized technical opinion. In fact, the committee itself has opined that a thorough technical examination from the quality point of view is required to be made by CVC/CBI which have the expertise. It has vehemently been argued by the learned counsel for the applicant that when the applicant was not a member of the supervisory committee, and no order appointing her a member of the committee was communicated to her, then how it can be said that the applicant was involved in supervising the construction work. As we have stated above, the letter of the Assistant commissioner would show that no record is available in the office showing dispatch or acknowledgement of receipt of order dated 01.05.2003 to the members of the so-called supervisory committee, and when the order was not served, then it cannot be presumed that the applicant was appointed as a member of the committee.
8. It has been argued by the learned counsel for the applicant that on the fateful day on 04.05.2005, the Greater Noida area was struck by a very high velocity windstorm, which caused extensive damage to the public property and the fury of the storm was so severe that a number of trees were uprooted and so much so, three electricity towers of 132 KV high voltage line fell down, and accordingly the asbestos sheets roof of the temporary class rooms was also damaged. It is an established fact that the construction was of a temporary nature. Paper cuttings have also been filed on behalf of the applicant to show that there was a strong wind storm on 04.05.2005 in the Greater Noida area and extensive damage was caused by the storm, and in the storm temporary roof of the KV Greater Noida was also damaged. The enquiry officer himself has admitted that The damage to the building seems to have been caused due to storm and winds on 3/5/05 which is an act of God coupled with poor quality of materials emanating from ineffective control, supervision and monitoring of CO and other members. On the one hand, the enquiry officer was of the opinion that the damage was caused due to storm and winds, but at the same time it has also been commented that it was coupled with poor quality or materials emanating from ineffective control, supervision and monitoring of the applicant and other members of the committee. Both the things are not possible simultaneously. Undisputedly, there was a strong storm in the area of Greater Noida on 04.05.2005 and extensive damage was caused, as would be evident from the newspaper cuttings, and the enquiry officer has also admitted this fact, but at the same time he commented regarding poor quality of the construction material. The enquiry officer is not justified to state that the construction material used was of poor quality and it was due to the ineffective control, supervision and monitoring of the applicant and other members of the committee. In the enquiry report, it has also been commented, In fact, the committee itself has opined that a thorough technical examination from the quality point of view is required to be made by CVC/CBI which have the expertise. When technical examination ought to have been conducted by the expert committee, then without the expert committee report, it could not be conclusively inferred that the material used was of poor quality. The committee was of the opinion that it must be examined thoroughly by the experts, but even then no report was called from the experts in order to verify that the material used was of poor quality. There was no material before the enquiry officer to arrive at a conclusion that the material used in the construction was of poor quality. Undisputedly asbestos sheets were used as roof of the class rooms, which were of temporary nature, and as there was a strong wind storm of high velocity and extensive damage was also caused to other properties as well, hence it was also possible that it was a natural disaster and the enquiry officer was also of the opinion that is was an act of God, but coupled with ineffective control, supervision and monitoring of the applicant and other members of the committee. When the act of God was responsible for the extensive damage caused to the building, then it cannot be inferred and it would not be justified on the part of the enquiry officer to conclude that the material used was of poor qualify, as there was no material available with the enquiry officer to draw this inference. Hence, the report of the enquiry officer is perverse in itself. When the enquiry officer himself was of the opinion that the damage was caused by the strong wind storm, it was not justified on his part at the same to comment that it was due to the poor quality material used in the construction work.
9. The learned counsel for the applicant also highlighted certain other glaring irregularities and contradictions and perversities in the report of the enquiry officer. Article-III of the charge was as regards issuing cheques to the supplier of the material. The enquiry officer was of the opinion that the applicant was not authorized for signing cheques, and it was Shri Chauhan and Mrs. Siddiqui who were authorized to put signatures on the cheques, even though an inference has been drawn by the enquiry officer that, However, the charge does say that quality of materials was not verified. In this connection A. N. Siddiqui, Neera Sharma and R. S. Chauhan have recorded certificates as under and signed them. When the cheques were signed by Shri Chauhan and Smt. Siddiqui, then without any basis, a wrong inference was drawn against the applicant.
10. As we have stated above, as per the advice of CVC, major penalty of reduction of pay by five stages from Rs.29800 + 7600 Grade Pay to Rs.24650 + 7600 Grade Pay in the time scale of pay of Rs.15600-39100 + Grade Pay Rs.7600/- for a period of five years with cumulative effect, has been imposed upon the applicant, and it has also been provided that the applicant would not earn increments of pay during the period of reduction and on expiry of the period, the reduction will have the effect of postponing her future increments of pay. It has been vehemently argued that the applicant has been charged for committing misconduct, but no act of the applicant can be said as misconduct as defined by the Honble Supreme Court. Several judgments have been cited by the learned counsel for the applicant, i.e., (1) Inspector Prem Chand v Government of NCT of Delhi & others [(2007) 4 SCC 566]; (2) Sher Bahadur v Union of India & others [(2002) 7 SCC 142]; (3) G. P. Sewalia & another v Union of India & another [AISLJ 2009 (2) (CAT) 360 (CAT, Principal Bench)]; and (4) Latoor Singh v Union of India & others [2003 (1) Administrative Total Judgments p.105 (CAT, Lucknow Bench)]. We have perused the judgments of the above said cases, and we can say that as per evidence produced during the enquiry, the conclusion drawn by the enquiry officer was perverse. It is not based on any evidence. It has not been proved that any supervisory committee was constituted in which the applicant was a member and this order was communicated to the applicant. Moreover, the enquiry officer as well as the disciplinary authority have admitted that on 04.05.2005 there was a wind storm of high velocity in the area of Greater Noida and extensive damage was caused, number of trees were uprooted and electricity towers of 132 high voltage fell down, and in that wind storm damage was caused to the building of KV Greater Noida. A wrong inference was drawn by the enquiry officer as well as by the disciplinary authority that although it was an act of God, but it was coupled with poor quality of material, whereas there was no material available on record which could establish that the material used in the construction was of poor quality. Under these circumstances, there appears no justification to maintain the order of punishment. It can be said that the applicant has been wrongly punished. Several other irregularities were committed during the enquiry.
11. On the basis of the above discussion, we have arrived at the conclusion that the order passed by the disciplinary authority and confirmed by the appellate authority in appeal, is perverse, illegal and can be called discriminatory and the same is liable to be quashed. When it was an act of God, then nobody can be held responsible for the damage caused to the building. The OA deserves to be allowed.
12. The OA is allowed. Order of punishment dated 12.12.2010 of the disciplinary authority and order dated 24.08.2011 passed by the appellate authority are quashed and set aside. The applicant is entitled for restoration of her salary. She is entitled for all the consequential benefits. The order shall be complied with by the respondents within a period of one month from the date of its communication. There shall be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( S. C. Sharma )
Member (A) Acting Chairman
/as/