Delhi High Court
The Commissioner, Kvs vs Ashok Kumar Sharma on 22 May, 2014
Author: Gita Mittal
Bench: Gita Mittal, Deepa Sharma
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5419/2013
% Date of decision: 22nd May, 2014
THE COMMISSIONER, KVS ..... Petitioner
Through: Mr.Rajappa and Ms.Aditi
Sinha, Advocates.
versus
ASHOK KUMAR SHARMA ..... Respondent
Through: Mr.T.D.Yadav, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA
GITA MITTAL, J. (ORAL)
1. We have heard learned counsel for the parties.
2. The writ petitioner has assailed the order dated 25 th February, 2013 in O.A.No.1292/2006 of the Central Administrative Tribunal. The facts disclosed before us would show that the respondent was appointed as an Audit Assistant (re-designated as Assistant Superintendent) with the Kendriya Vidyalaya Sangathan, (appellant before us). Pursuant to a charge-sheet dated 16th May, 2000, disciplinary proceedings were held against the respondent which culminated in an enquiry report dated 9 th February, 2002 W.P.(C) No.5419/2013 Page 1 of 8 whereby the Inquiry Officer found the respondent guilty of the following charges.:
"Article-I During 1999-2000 remanded absent from duty wilfully. Moreover on some occasions Shri Sharma putting his signature in the staff attendance register left the office without any information.
Article-II During 1999-2000 failed to perform his assigned duties wilfully.
Article-III During 1999-2000 on 15.10.99 abused the Administrative Officer during morning hours and also to Education officer Shri M.S.Chauhan and Shri R.K.Nair, Superintendent (Admn.) at about 1730 hrs. in the presence of staff members of Regional Office.
Article-IV During 1999-2000 and 2000-20 allegation against the Assistant 07.04.2000 to the effect that assistant Commissioner always threatening him with the consequences in case applicant does not withdraw the case filed in CAT, Jabalpur, without any documentary evidence.
Article-V During 1999-2000 while submitting his leave applications did not give his correct residential address and put the Sangathan in an embarrassing position.
Article-VI During 1999 he misused the salary certificate issued in his favour on 25.06.99 by the Assistant Commissioner, KVS, Regional Officer, Jabalpur while getting loan from LIC Housing Finance Ltd., Bareilly without informing the facts to his head office/appointing authority."
3. After considering the representation of the petitioner on the W.P.(C) No.5419/2013 Page 2 of 8 enquiry report, the Disciplinary Authority passed an order dated 5th November, 2002 accepting the recommendation of the Inquiry Officer and imposing the punishment of dismissal from service. Thereafter the petitioner filed a statutory appeal before the Appellate Authority which had not been considered. Aggrieved thereby, the petitioner approached the Tribunal by way of an original application being O.A.No.463/2003 which was disposed of by the said Tribunal by an order dated 11th July, 2003 directing the Appellate Authority to dispose of the petitioner's appeal. The appeal was finally disposed of by an order dated 29 th September, 2003 of the Appellate Authority rejecting the appeal. The respondent filed a Revision Petition against the order of the appellate authority. Again the revision petition was not taken up for consideration by the Revisional Authority. Aggrieved thereby the respondent filed O.A.No.317/2005 which was disposed of by order dated 11th February, 2005 directing the Revisional Authority to dispose of the revision. This revision was dismissed by an order dated 23rd March, 2006.
4. The respondent assailed these proceedings by way of W.P.(C) No.5419/2013 Page 3 of 8 O.A.No.1292/2006 which culminated in the order dated 30 th March, 2007 of the Tribunal. The matter did not rest here and a Review Petition bearing R.A.No.114/2007 filed by the respondent was also rejected by an order dated 2nd July, 2007.
5. The respondent assailed the orders which have been passed by the authorities as well as the Tribunal against him by way of Writ Petition (Civil) No.5996/2007 which was favourably decided on 5th July, 2010. This order has attained finality.
6. Our attention is drawn to the order dated 5th July, 2012. We find that the court has noticed that the petitioner was prevented from being present in the enquiry on 6th to 8th February, 2002. This was because warrants were issued for his presence on 5th February, 2002 by the Special Judge, CBI at Lucknow. On these dates, instead of adjourning the disciplinary proceedings, witnesses being nos.SW8 to 15 were examined. This court by the order dated 5 th July, 2012 was of the view that in view of the enquiry proceedings between 6th to 8th February, 2002 having been conducted behind the back of the petitioner, the same stood vitiated. Therefore, without examining any other issue in the matter, this court accepted W.P.(C) No.5419/2013 Page 4 of 8 the position that injustice had resulted against the respondent when he was deprived of the opportunity to appear in the enquiry on 6th and 8th February, 2002. This court in para 8 of order dated 5th July, 2012 has noted that the present respondent (petitioner therein) had sent a letter dated 23rd January, 2002 to the Inquiry Officer requesting him to extend the date to the last week of February since he had to attend the CBI court on the said date at Lucknow, U.P. Unfortunately, this letter was completely ignored by the Inquiry Officer denying the appropriate opportunity to the petitioner to participate in the inquiry proceedings. This court has noticed that the Special Judge, CBI at Lucknow, UP had in fact issued a non bailable warrant requiring presence of the petitioner before his court on 5th February. It was because the petitioner apprehended arrest that he left the head quarters on 4th February, 2002 even though his leave had not been sanctioned. This court also noted the admitted position that the petitioner had appeared before the Special Judge, CBI at Lucknow.
7. In view of the above, this court was of the view that the impugned order deserved to be set aside and remitted back the W.P.(C) No.5419/2013 Page 5 of 8 matter for consideration on this aspect. Therefore, by the order dated 5th July, 2012, the court had set aside the order dated 30 th March, 2007 and 2nd July, 2012 and remitted the case for hearing on all aspects of the matter particularly on the issue of lack of opportunity to the petitioner to defend his case.
8. On remand, the Tribunal had reconsidered the matter and by its judgement dated 25th February, 2013 concluded that the applicant was unjustifiably deprived of cross examining certain witnesses and to that extent enquiry proceedings were vitiated. The orders of the Disciplinary Authority, the Appellate Authority and the Revisional Authority based on the inquiry report were also held to be vitiated and the inquiry report and inquiry proceedings held after examination of SW7 were quashed. The orders of the Disciplinary Authority, Appellate Authority and Revisional Authority were also quashed by the Tribunal.
9. Learned counsel for the respondent has not disputed the correctness of the directions to the petitioner to proceed with the inquiry afresh from stage of examination of SW8 onwards if they so desired.
W.P.(C) No.5419/2013 Page 6 of 8
10. Inasmuch as the order of termination of the respondent's service has been set aside, we are unable to disagree with the directions made by the Central Administrative Tribunal. The respondents are bound to comply with the principle of natural justice. There is no dispute to the fact that despite having information that the respondent would not be able to appear in the enquiry proceedings, the enquiry officer proceeded to record the statements of several witnesses SW8 to SW15, certainly, the defence of the respondent would have been substantially prejudiced. Therefore, the challenge by the petitioner by way of the present writ petition is rejected and the writ petition is hereby dismissed. While dismissing the writ petition, it is made clear that the respondent shall be taken back into service only for the purpose of completion of the disciplinary proceedings from the stage of examination of SW8. The petitioner shall ensure that the disciplinary proceedings and enquiry is completed expeditiously in any case within two months from today.
11. The respondents shall participate in the proceedings and ensure that there is no unwarranted adjournment or delay in the W.P.(C) No.5419/2013 Page 7 of 8 same.
12. The respondents shall pass appropriate directions from the date on which the respondent is taken back in service.
13. The writ petition is disposed of in the above terms.
GITA MITTAL, J DEEPA SHARMA, J MAY 22, 2014 rb W.P.(C) No.5419/2013 Page 8 of 8