Central Administrative Tribunal - Jabalpur
Nand Lal vs Kendriya Vidyalaya Sanghthan on 8 December, 2017
1 OA No.201/00888/2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING:INDORE
Original Application No.201/00888/2015
Jabalpur, this Friday, the 08th day of December, 2017
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Nandlal, S/o Shri Ram Dular Singh Patel,
age 56 years, Librarian, K.V.9 BRD, AF,
Chandan Nagar, Pune-411014 -Applicant
(By Advocate -Shri P.J.Mehta)
Versus
1. Union of India, through Secretary, HRD Ministry,
124-C, Shastri Bhawan, New Delhi-110001
2. Commissioner, Kendriya Vidalaya Sangathan,
18 Institutional Area, Saheed Jeet Singh Marg,
New Delhi-110016
3. Joint Commissioner (Administration), Kendriya Vidalaya
Sangathan, 18 Institutional Area, Saheed Jeet Singh Marg,
New Delhi-110016
4. Deputy Commissioner, Kendriya Vidalaya Sangthan,
Regional Office, Opposite Maida Mill,
Bhopal-462011 - Respondents
(By Advocate -None)
(Date of reserving the order:-14.09.2017)
ORDER
By Navin Tandon, AM:-
The applicant is aggrieved as the respondents have imposed a penalty on him without proper enquiry and therefore, has filed this Original Application.Page 1 of 11 2 OA No.201/00888/2015
2. This Original Application was first listed on 07.10.2015. Till the date of final hearing on 14.09.2017, no written reply had been filed from the respondents, inspite of several extension of time. No counsel appeared on behalf of respondents in the last four hearing on 01.05.2017, 03.05.2017, 13.09.2017 & 14.09.2017, though proxy counsel appeared on 03.05.2017 and 13.09.2017. It was ordered on 13.09.2017 that matter will be heard ex-parte, if no reply is filed on the next date of hearing.
None appeared for the respondents. Even on second call no one appeared for the respondents. Hence, we propose to decide this matter ex-parte, i.e. after hearing the counsel for the applicant and the pleadings available on record, by exercising our powers under Rule 16 (1) of the Central Administrative Tribunal (Procedure) Rues, 1987.
3. The facts of the case are that the applicant was appointed in Kendriya Vidyalaya Sangathan (KVS) as a Librarian on 27.02.1992. On 27.08.2008 he got suspended while working as Librarian at K.V. Bhind due to a complaint made by some lady teachers of the school. At the time of suspension the Head Quarter of the applicant was at KV Kerera, Shivpuri. The suspension was revoked on 29.11.2008 and he was transferred to KV Barwani. The Page 2 of 11 3 OA No.201/00888/2015 applicant was given memorandum of charges on 25.09.2008 (Annexure A-3) comprising of four charges which were as follows:
Article I That, the said Shri Nand Lal, while functioning as Librarian in Kendriya Vidyalaya, Bhind during the year 2007-2008 had failed to keep exemplary moral character with the members of the opposite sex in the Vidyalaya and outside due to this the reputation of Kendriya Vidyalaya, Bhind in particular and Kendriya Vidyalaya Sangathan in general has been tarnished. Thus the said Shri Nand Lal had committed gross misconduct and violated Article 59 (11) & (14) of the Education Code Kendriya Vidyalayas and Rule 3(1) (iii) of CCS (Conduct) Rules 1964 as applicable to the employees of Kendriya Vidyalaya Sangathan.
Article II That the said Shri Nand Lal, while functioning as Librarian in Kendriya Vidyalaya Bhind during the year 2008 had submitted a false complaint through his wife directly to the Commissioner, KVS, New Delhi and the Collector, Bhind against Principal for torturing her husband and alleged baseless charges. Thus the said Shri Nand Lal has committed gross misconduct and violated Article 59 (27) of Education Code for Kendriya Vidyalayas and Rule 3(1) (iii) of CCS (Conduct) Rules 1964 as applicable to the employees of Kendriya Vidyalaya Sangathan.
Article III That the said Shri Nand Lal, while functioning as Librarian in Kendriya Vidyalaya, Bhind during the year 2007 & 2008 had not maintained the library in the proper manner as per KVS Guidelines. He has also not used the library and the books for the benefit of the students. Thus the said Shri Nand Lal has committed gross misconduct of negligence with his prime duty and violated Article 59 (11) & (15) of Education Code for Kendriya Vidyalayas and Rule 3(1) (ii) &(iii) of CCS (Conduct) Rules 1964 as applicable to the employees of Kendriya Vidyalaya Sangathan.Page 3 of 11 4 OA No.201/00888/2015
Article IV That the said Shri Nand Lal, while functioning as Librarian in Kendriya Vidyalaya, Bhind during the year 2008 had put condoms in the class roomo n 5th Jan 2008 and when seen by Shri Anil Kumar Batham, he asked him to keep it in the girls toilet in order to bring disrepute to the Principal and the Vidyalaya as such the image of this Vidyalaya, Bhind and Kendriya Vidyalaya Sangathan has been tarnished. Thus, the said Shri Nand Lal has committed gross misconduct and violated Article 59 (14) of Education Code for Kendriya Vidyalaya and Rule 3(1) (iii) of CCS (Conduct) Rules 1964 as applicable to the employees of Kendriya Vidyalaya Sangathan.
4. The applicant has prayed for the following reliefs:-
"8(8.1) It be held that the Departmental Enquiry held against the applicant is void ab initio and therefore Memorandum of Charges, Annexure A-3 & Enquiry Report, Annexure A-4, be quashed.
(8.2) it be held that since the punishment order, Annexure A-1 and the Appellate Order, Annexure A/2, are based on the inquiry report of the Departmental Enquiry which has been conducted against the law, therefore they are also void ab initio and deserve to be quashed.
(8.3) Direction may kindly be given to the Respondents to treat suspension period of the Applicant as "on duty".
(8.4) Direction may kindly be given to the Respondents to restore Applicant's salary as he was getting before imposing of the punishment and also give him all consequential benefits thereof by fixing his pay accordingly & paying the arrears of salary along with interest at the rate of 18% per annum.
(8.5) Any other relief as deemed proper by this Hon'ble Tribunal and the costs of this O.A."
Page 4 of 11 5 OA No.201/00888/2015
5. The applicant has submitted that an enquiry officer was appointed and the enquiry was conducted against the applicant. He further submitted that all the witnesses were not cross examined and the applicant was not given fair chance to examine the witnesses produced before the enquiry and the respondent No.4 issued the penalty order dated 18.05.2012 (Annexure A-1) imposing penalty of reduction of pay of the applicant by two stages for a period of two years with a direction that he will get increments during the period of reduction and on expiry of the period, the reduction will not have the effect of postponing the future increments of pay and his suspension period was also treated as dies-non. He further pleaded that applicant preferred an appeal on 09.07.2012 (Annexure A-5) against the punishment order to the appellate authority and the respondent No.3 issued an order dated 19.05.2015 (Annexure A-2) rejecting the appeal and confirming the order passed by the disciplinary authority.
6. Heard the learned counsel for the applicant and perused the pleadings available on record.
7. It is the case of the applicant that the enquiry has not been conducted in a fair manner. The main points put forward by him are as follows:-
7.1 Services of Defence Assistant was denied.Page 5 of 11 6 OA No.201/00888/2015
7.2 Certification of different documents were done by an incompetent authority.
7.3 Applicant was not given fair chance to cross-examine the witnesses produced.
7.4 Inquiry Officer taking cognizance of report of SDO (Revenue) Bhind without giving any opportunity to the applicant to cross-examine it. Also, witness No.10 Shri Anil Kumar Batham was not presented in the enquiry.
8. Learned counsel for the applicant has placed reliance on judgment of Ritesh Chakravarti vs. State of Madhya Pradesh, 2006, Law Suit (SC) 817 wherein a criminal case was dismissed in the absence of independent witness.
9. Perusal of the enquiry report brings out the following facts:-
(9.1) Date of issue of charge sheet 25.09.2008.
(9.2) Date of appointment of Enquiry Officer (EO) 16.01.2009.
(9.3) Date of hearing in enquiry 19.02.2009 to 29.08.2011 (11 hearings).
(9.4) In each of the hearing, except the first one on 19.02.2009 and last one on 29.08.2011, the Charged Official (CO) has requested to appoint Shri M.L. Kajodia as his Defence Assistant. Every time the request was refused as Shri M.L.Kajodia was removed/terminated from KVS service. The applicant even approached higher authorities for keeping Shri Kajodia as Defence Assistant, but the request was turned down. Repeatedly, the E.O. asked the Charged Official to appoint another Defence Assistant, but to no avail.
(9.5) The C.O. mentioned that he will be unable to present his case in English and requested for proceedings to be carried out in Hindi. On enquiry by the E.O. he informed Page 6 of 11 7 OA No.201/00888/2015 that he had studied "English" as an optional subject in B.A. (Honors) and done B. Library Science & M.Lib.Sc. through English Medium.
(9.6) The Presenting Officer (P.O.) presented four witnesses (all females) on 10.11.2010, who were examined by P.O before the C.O. All four state witnesses stated that they had given the statements regarding C.O.'s behavior and still stood by the statements given on 18.04.2008. The C.O. did not cross examine the state witnesses, asking for one weeks' time to do so.
(9.7) The C.O. asked the E.O. to transfer Ms. Rekha Saxena, Principal K.V., Bhind, knowing fully well that E.O. was not competent to do so.
(9.8) The C.O. asked the photocopies of documents to be given to him after attestation by competent authority. The photocopies provided to him have been attested by Shri Rajneesh Saxena, Presenting Officer, where he has not mentioned his name/designation under the signature. (9.9) No defence witnesses were produced by C.O. in spite of I.O. giving repeated opportunity to do so.
10. Based on the facts emerging out of Para 9, we will examine the grievances put forward by the applicant (Para 7) against the enquiry.
(10.1) Services of Defence Assistant was denied It is very clear that the applicant wanted only one particular individual to act as his Defence Assistant. Even though that name of Shri M.L. Kajodia was turned down by E.O. for reasons spelt out that Shri Kajodia was removed/terminated from KVS service, the applicant did not come up with another name. E.O. had repeatedly asked the C.O. for another name, but C.O. did not Page 7 of 11 8 OA No.201/00888/2015 furnish the same. Therefore, it can be concluded that this grievance of the applicant is without any basis.
(10.2) Certification of different documents were done by an incompetent authority.
It is not clear what does the applicant mean by using the words "incompetent" or "competent". The documents attested by P.O. cannot be said to be attested by an incompetent authority. Therefore, we conclude that this grievance is deliberately made up and is without any substance.
(10.3) Applicant was not given fair chance to cross-examine the witnesses produced.
The state witnesses were presented on 10.11.2010, which was the 7th date of hearing and almost 21 months after the enquiry had been initiated. The applicant was given the opportunity to cross examine the state witnesses, but did not do so. Instead he asked for one week's time to do so.
It is to be appreciated that the charge in Article I are of very serious nature, where the applicant has been charged of failure to keep exemplary moral character with the members of opposite sex. It takes great courage on the part of women to come out and complain against someone of inappropriate behavior. Then further effort is required on the part of complainant to be allowed to be cross questioned by the C.O. himself. In the circumstances it is dilatory tactics on the part of the C.O. to have asked one week's time to cross-examine the State witnesses. Page 8 of 11 9 OA No.201/00888/2015
We are emphatic in rejecting this grievance of the applicant. (10.4) Inquiry Officer taking cognizance of report of SDO (Revenue) Bhind without giving any opportunity to the applicant to cross-examine it. Also, witness No.10 Shri Anil Kumar Batham was not presented in the enquiry.
The extracts from the heading "Summary of Analysis & Assessment of Evidence" of the enquiry report are as under:-
II) Regarding Article-II of Chargesheet A) Inquiry report of SDO (Revenue) Bhind states that the allegations/complaints made by Smt. Kusum Singh wife of Sh. Nandlal against the Principal, K.V.Bhind are false and baseless.
B) The charged officer did not produce any document/witness in his defence.
III) Regarding Article-III of Chargesheet A) The inquiry report No.04 submitted by Sh. Prakash Madan, Education Officer, states that Sh. Nandlal had also been heard during the enquiry (SD 15&16) B) That Sh. Nandlal had inspected the original document. C) He did not produce any document/witness in his defence.
IV) Regarding Article-IV of Chargesheet A) The presenting officer stated his inability to present Sh.
Anil Kr. Batham as witness. However, he submitted statement of Sh. Anil Kr. Batham given in the Hon'ble Court of SDO (Revenue) Bhind during the enquiry dt. 13.06.2008 directed by the Collector, Bhind(SD 18)s B) Inquiry report of SDO (Revenue) Bhind states that Shri Nandlal intentionally did the act to damage the prestige of the Principal and Vidyalaya.
C) The findings of a Hon'ble Court are certainly valid in D.E. D) The charged officer did not produce any document/witness in his defence.
Page 9 of 11 10 OA No.201/00888/2015 Perusal of the above do indicate that the E.O. has taken cognizance of reports by other authorities like SDO (Revenue), Bhind or Education Officer in proving article II, III & IV, which has not been produced as witness in this enquiry and C.O. has not been given the opportunity to cross-examine the authors/witness therein. This has prejudiced the C.O. as he has been deprived of important right to cross examine to test the veracity of witness.
11. In view of the above, we are of the considered view that Article I of the Charge sheet has been fully proved in the enquiry and there is no ambiguity.
12. The charges regarding Article II, III and IV in the enquiry are not proved as per law. Resultantly, the findings regarding Article II, III & IV are vitiated as it is not in accordance with law. Hence, the enquiry proceedings qua Article II, III & IV are quashed and set aside.
13. Accordingly, the Original Application is partly allowed. We quash and set aside the orders of the Disciplinary Authority dated 18/21.05.2012 (Annexure A-1) and of the Appellate Authority dated 19.05.2015 (Annexure A-2) qua the Article No. II, III & IV. Page 10 of 11 11 OA No.201/00888/2015
14. In view of the above, the Disciplinary Authority is directed to reconsider the case of the applicant qua the quantum of punishment.
15. No order as to costs.
16. Registry is directed to send certified copies of this order to all the respondents.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
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