Central Administrative Tribunal - Chandigarh
Unknown vs Administrator on 1 September, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
CHANDIGARH
Filed on: 25.05.2015
Reserved on: 26.08.2016
Pronounced on:01.09.2015
OA No. 060/00469/2015
MA. No. 060/00784/2015
Coram: Honble Mr. Justice L.N. Mittal, Member(J).
Honble Mrs. Rajwant Sandhu, Member(A).
Sanjeev Kumar son of Sh. Jagdish Prasad Verma, aged 42 years, resident of House No. 3922, Sector 22-D, Chandigarh, presently working as Assistant Professor in Sculpture, Government College of Arts, Sector 10, Chandigarh (UT).
..Applicant
By Advocate : Sh. S.S. Pathania
Versus
1. Administrator, Union Territory, Chandigarh through Advisor to Administrator, UT Secretariat, Sector 9, Chandigarh (UT).
2. Sh. Sarvjit Singh, Secretary Finance, UT Administration, Sector 9, Chandigarh (UT).
3. Sh. Sandeep Hans, Head of Department, Government College of Art, Sector 10, Chandigarh (UT).
4. Dr. Surender Singh Dahiya, Acting Principal, Government College of Art, Sector 10, Chandigarh (UT).
5. Rajesh Kumar Sharma, Assistant Professor, Government College of Art, Sector 10, Chandigarh (UT).
6. Sh. Pushpinder Siyal, c/o Vice Chancellor, Panjab University, Sector 14, Chandigarh (UT).
7. Professor M.G. Kidwai, Department of Fine Arts, Jamia Milia Islamia University, New Delhi through Acting Principal, Government College of Arts, Sector 10, Chandigarh (UT).
..Respondents
By Advocate : Sh. Rohit Mittal proxy counsel for Sh. Rakesh Verma,
counsel for the respondents.
O R D E R
By Honble Mrs. Rajwant Sandhu, Member(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief (s):-
(i) Impugned order dated 18.03.2015 be quashed being illegally passed with biased mind just to harass, humiliate, punish and cause financial injury to the applicant.
(ii) Order granting financial upgradation of Senior Scale w.e.f. 20.07.2006, Selection Grade w.e.f. 20.07.2011 and PB-4 w.e.f. 20.07.2014 may please be passed.
(iii) That arrears so accrued, may please be ordered to be disbursed with interest @ 12.50% P.A. from the date of accrual to the date of actual disbursal with monthly rests.
(iv) That since the respondents have sat on appeal against the orders passed by the Tribunal in the matter of ACRs, suspension, removal from service etc., contempt proceedings (civil as well as criminal) may please be initiated against them.
2. It is stated in the OA that the applicant is serving as Assistant Professor in Sculpture in Government College of Arts, Chandigarh. He was recommended to be appointed as Assistant Professor (erstwhile Lecturer) in Sculpture in Government College of Arts, Sector 10, Chandigarh vide letter dated 04.06.2001 issued by UPSC. The respondents denied the appointment to the applicant and hence the applicant filed OA No. 525/CH/2002 before this Tribunal which was decided in favour of the applicant by an order dated 21.03.2003 (Annexure A-2). Against this order, the respondent Administration approached the Honble High Court of Punjab and Haryana through CWP No. 8782-CAT-2003 which was dismissed in view of the judgement of Honble Supreme Court. Thereafter, when a contempt application (Annexure A-3) was filed before this Tribunal, vide appointment letter dated 17.11.2003 (Annexure A-4), applicant was appointed to the post of Lecturer (now re-designated as Assistant Professor). In pursuance to this appointment letter, the applicant joined service on 08.12.2003, i.e. almost after two and half years from the date of selection/recommendation by UPSC. Though the period of probation was completed on 07.12.2004, but despite various applications and reminders by the applicant for confirming him on the post, the applicant was not confirmed till the applicant filed OA No. 875/CH/2011 that was decided in favour of the applicant.
3. It is further stated that the annual/advance increments were not being granted/released to the applicant till another OA No. 393/CH/2006 was filed and an order dated 03.07.2007 was passed by the Tribunal. ACRs were spoiled by the previous incumbent of respondent No. 4 without disclosing the adverse entries for which again applicant had to approach the Tribunal by filing an OA No. 18/CH/2013. This OA was decided vide order dated 28.05.2013 (Annexure A-6) and relevant operative part of this judgement is reproduced as under:-
9. In the light of the foregoing discussion, we would rely upon the administrative instructions issued by the Government of Punjab. It is ordered, on the basis thereof, that the relevant ACRs shall not be taken to be part of service record of the applicant. Then, just to teach the applicant a lesson, false complaints were obtained by the previous incumbents of respondent No. 4 allegedly from the parents of the final year sculpture students but during the proceedings in Civil Suit for defamation filed by the applicant, some of the parents who appeared before the Civil Court denied having filed any complaint. Another false complaint of sexual harassment was got initiated upon which the applicant was posted out of the college to a non-cadre post vide order dated 19.04.2006 (Annexure A-7). This transfer order was challenged before the Tribunal and the operation of the transfer order was stayed. The respondents got another complaint of sexual harassment manufactured against the applicant and placed him under suspension after giving a lot of publicity in print media. Another OA No. 382/CH/2006 was filed by the applicant which was decided by the Tribunal vide order dated 15.11.2007 (Annexure A-8) and the suspension was held to be illegal. After having ordered and got conducted two separate departmental inquiries, having obtained inquiry reports against the applicant, with paper cuttings/clippings of false and defamatory manufactured news items, the respondents ordered the removal of the applicant from service vide order dated 12.02.2008 (Annexure A-9). Order was challenged before the Tribunal and was set aside and quashed vide judgement dated 17.04.2009 (Annexure A-10). Thereafter, in yet another inquiry report, the applicant was ordered to be dismissed from service which was later on withdrawn in CP No. 57 of 2009.
4. It is further stated that in order to harass and subjugate the will of the applicant to fight for justice, the respondent administration through its overzealous officials, engineered a strike by students in the College on 27.08.2013. False and manufactured complaints were got filed against the applicant on 02.09.2013. During the strike, the applicant was heckled, hooted at and humiliated by the striking students, was threatened with violence and physical harm and when the matter was reported to respondent authorities, the applicant was ordered to proceed on leave and advised not to come to the college premises. A manipulated preliminary inquiry was conducted in which the statements of various students (motivated and manipulated) and teachers (interested) were allegedly recorded in the absence of the applicant and thereafter, a questionnaire was handed over to the applicant which was appropriately replied to. None of the statements were recorded in the presence of the applicant nor was he afforded an opportunity of being heard or cross-examining the witnesses who gave statements before the Inquiry Committee. The observations, recommendations and conclusion of the Inquiry Committee, which were submitted on 30.09.2013 are enclosed as Annexure A-11. Sometime in the first week of November, 2013, the applicant received a suspension order dated 29.10.2013 (Annexure A-12). Suspension order is passed by incompetent authority which was challenged by filing OA No. 060/00306/2014 which is pending for 02.07.2015 before the Tribunal. During the pendency of this OA, the suspension order has been revoked vide order dated 13.12.2014 (Annexure A-13).
5. It is further stated that the applicant has completed more than fifteen years of service (from the deemed date of seniority) but Senior Scale and Selection Grade has been illegally withheld by the respondents for which another OA No. 760/CH/2013 was filed and decided in favour of the applicant in terms of the following vide order dated 20.08.2014 (Annexure A-14):-
In view of the submissions made by the learned counsel for the respondents, order dated 16.01.2013 (Annexure A-1) is quashed and matter is referred for reconsideration to the Chandigarh Administration with the direction that similarly situated employees of the Administration should be treated in a similar manner and such consideration in respect of the applicants in the present OAs may be completed within two months from the date of receipt of a certified copy of this order being served upon the respondents.
7. In so far as the second benefit of treatment of notional service as eligible service for grant of senior scale under CAS is concerned, there is a specific plea in sub para 4 (ix) that benefit has been granted to faculty members of Department of Higher Education in GMCH. If that be so, let the respondents take a decision on that aspect as well within a period of two months from the date of receipt of copy of this order. When above-said order was not complied with, a Contempt Petition No. 060/00198/2014 was filed by the applicant in which the order impugned was filed by the respondents and the contempt petition was dismissed vide order dated 17.04.2015 (Annexure A-15). However, it was left open for the petitioner to challenge the order (Annexure A-1) on the original side and hence the present OA.
6. In the grounds for relief, it has, interalia, been stated as follows:-
(i) Honble CAT in OA No. 97/CH/2008 which was decided vide order/judgement dated 17.04.2009 (Annexure A-10), has observed as under:-
This indicates that respondent No. 3 was predetermined to teach applicant a lesson. The proceedings of Sexual Harassment Committee are also not better than the proceedings of a Kangaroo Court as the applicant was neither given an opportunity to be present in its proceedings, nor was he allowed cross-examining the witnesses, nor the members were mature enough to assess and weigh the allegations. It is on record that applicant had received a written report against Ms. Dhaarna involving her in stealing the money of fellow students and the copy of the complaint was also enclosed by him with his report dated 04.12.2004 (Annexure A-7). This could have been reason for Ms. Dhaarna to level charges of Sexual Harassment against the applicant. On return from tour, she did not lodge any complaint of sexual harassment at the hands of the applicant during the tour to the Principal and at one stage, Ms. Dharna had agreed to withdraw her complaint, if he was ready to apologize in the presence of the staff and students of the College. The Sexual Harassment Committee also did not try to find out the facts behind the proposal nor was opportunity given to the applicant to help it (S H C) to do so. In our considered opinion the freshly constituted Sexual Hrassment Committee was manned by persons of improper stature and did not have the maturity and experience to enquire into the complaint of sexual harassment in an impartial and transparent manner.
(ii) ACRs initiated after the laid down period are ordered to be removed by the Tribunal.
(iii) The impugned order (Annexure A-1) is passed by respondent No. 2 through which the proceedings of the Screening-cum-Evaluation Committee held on 18.03.2015 under the Chairmanship of the respondent No. 2 having respondents No. 3 to 6 as its members, which reads as under:-
The case of promotion of Sh. Sanjeev Kumar, Assistant Professor in Sculpture, College of Arts was deliberated at length in the meeting. It was noticed that said official had fared Very Good in 2003-04, Average in 2004-05 and Below Average in 2005-2006 which was later on considered as Average. He was under suspension from 2006 to 2008 and then he was removed from service in February, 2008 and came back in service in October, 2009 after taking relief from Court of Law on technical grounds. Thereafter, in the year 2009-10, 2010-11 and 2011-12 record has been Good. It is obvious that assessment of his performance by his superiors is not very encouraging. More important aspect is that there has been number of complaints of sexual harassment by the girl students against him and first complaint was in 2006 on account of which he was placed under suspension from 2006 to 2008 (as explained above).
There was another complaint in August, 2013 and complaint was found to be genuine in the preliminary inquiry and he was placed under suspension. His suspension was revoked subject to pending/finalization of inquiry. A regular inquiry has been initiated. It needs mention that three inquiry officers refused to conduct the inquiry and now it is with the 4th inquiry officer.
In these circumstances, the Committee feels that it will be failing in its duty if it grants promotion to such a person which would only send a very adverse message to the students and teaching community. Therefore, the committee unanimously decided to reject the promotions under Career Advancement Scheme to Sh. Sanjeev Kumar, Assistant Professor, GCA, Chandigarh. The constitution of the Committee is improper and is in violation of Rules. Criterion for upgradation is not followed and in view thereof the proceedings are not justifiable.
(iv) That the ACRs for the years 2004-05 and 2005-06 which have been considered by the Committee were ordered to be removed from the service record of the applicant vide order dated 28.05.2013 (Annexure A-6). Mere fact of placing these ACRs before the Committee amounts to disobedience of the orders of the Tribunal and is contemptuous act. Non-grant of promotion based on these ACRs is illegal. The adverse order of suspension passed in 2006 has been held to be illegal and unsustainable in the eyes of law and denial of promotion on the ground of having been placed under suspension is improper and illegal.
(v) The present committee by its very conduct of considering those parameters which were not within their domain and by not considering what was to be considered, prima facie giving a look of collection of stooges who have just signed on the dotted line without applying its mind. Non-application of mind itself renders its proceedings as null and void. The whole exercise conducted/managed by the respondents smacks of victimization by targeting of the applicant otherwise similarly situated other employees had been granted the benefit of financial upgradation.
7. In the written statement filed on behalf of respondents No. 1-7, it has been stated that the applicant has already approached number of times to the Civil Court by filing the suits for grant of decree for damages for defamation against the then officials of the department and the same was dismissed by the trial court on 26.09.2013 in which it was specifically mentioned that the plaintiff has failed to prove that he is entitled for any damages on account of defamation and the present suit of the Plaintiff fails and the case was dismissed by the trial court. The applicant also approached the trial court in case of suit of recovery from the defendants towards the loss caused and the same was dismissed by the trial court on 17.11.2014 in which The Plaintiff did not prove his case and the same was dismissed was mentioned. It is apparent from the perusal of the orders passed by the Civil Courts in suits filed by the applicant that the applicant is making false personal allegation against the official respondents and the same were dismissed by the Civil Court after thoroughly examining the matter.
8. It is further stated that the case of promotion of the applicant under Career Advancement Scheme was deliberated at length in the meeting of the Screening cum Evaluation Committee on 18.03.2015. It was noticed that the official had fared Very Good in 2003-04 and Below Average in 2005-06 which was later on considered as Average. He was under suspension from 2006 to 2008 and then he was removed from service in February, 2008 and came back in service in October, 2009 after taking relief from the Court of Law on technical grounds. Thereafter, in the year 2009-10, 2010-11 and 2011-12, his record has been Good. It is obvious that the assessment of his performance by his superiors is not encouraging. More important aspect is that there have been number of complaints of sexual harassment by girl students against him and first complaint was in 2006 on account of which he was placed under suspension from 2006 to 2008. There was another complaint in August, 2013 and the complaint was found to be genuine in the preliminary inquiry and he was placed under suspension. His suspension was revoked subject to pending/finalization of inquiry. A regular inquiry has now been initiated. Three inquiry officers refused to conduct the inquiry and now it is with the 4th inquiry officer. In these circumstances, the Committee felt that it would be failing in its duty if it grants promotion to the applicant which would only send a very adverse message to the students and teaching community. Therefore, the committee unanimously found the applicant not fit for promotion under Career Advancement Scheme.
9. Rejoinder has been filed by the applicant reiterating the content of the OA.
10. M.A. No. 060/00784/2015 has been filed seeking deletion of the names of the respondents impleaded by name as the impugned order has been passed by the Committee constituted for considering the promotions and there are no specific allegations against any of these respondents.
11. Arguments advanced by learned counsel for the parties were heard. Learned counsel for the applicant reiterated the content of the OA. He stated that such ACRs had been taken into account by the Screening Committee that met on 18.03.2015 under the Chairmanship of Secretary, Technical Education for considering the case of the applicant under the Career Advancement Scheme which could not be considered keeping in view the judgement in a previous OA No. 18/CH/2013 which was decided vide judgement dated 28.5.2013. The order dated 20.08.2014 in OA No. 760/CH/2013 had also to be taken note of, but the Committee had gone into extraneous material and had referred to the orders regarding suspension of the applicant from 2006 to 2008, removal from service and mentioned that he came back in service in October, 2009 after taking relief from a court of law on technical grounds. Learned counsel pressed that when the applicant had got relief from the Administrative Tribunal and the related orders passed by the respondents had been set aside, the Screening cum Evaluation Committee could not take any note of these events on 18.03.2015 while considering the case of the applicant under CAS. Learned counsel pressed that the applicant was being victimized/harassed and the complaints against him regarding sexual harassment were concocted ones. The complaint made in August, 2013 and the subsequent inquiry ordered by the administrative authorities had not reached conclusion so far although three years had already elapsed.
12. Learned counsel for the respondents merely reiterated the content of the written statement and stated that since the applicant had been implicated in cases relating to sexual harassment, his record as a teacher could not be considered satisfactory for being given the benefit of the Career Advancement Scheme.
13. We have carefully perused the material on record and heard arguments advanced by learned counsel for the parties. The applicant was entitled to Senior Scale w.e.f. 20.7.2006 keeping in view his deemed seniority as Lecturer/Assistant Professor. While no ACRs could be recorded till the applicant joined service on 8.12.2003, i.e. 2-1/2 years from the date of selection/recommendation by UPSC, the ACR for the period 2003-04 had the grading of Very Good. The gradings for 2004-05 and 2005-06 were Average. However, these two ACRs were not to be taken to be part of the service record of the applicant as per order dated 28.5.2013 (Annexure A-6) in OA No. 18/CH/2013. While forwarding the application of the applicant for the post of Assistant Professor in the BHU in 2005, the respondent college had conveyed that the service of the applicant was rated as Good. If the ACR for 2003-04 and the certificate of the authorities of the respondent college recorded in 2005 are taken into account, the applicant would be deserving of Senior Scale w.e.f 20.7.2006. Further, for consideration of the applicant for selection grade w.e.f. 20.7.2011, the ACRs for the previous three years i.e. 2008-09, 2009-10 and 2010-11 would be relevant. In all these years, the ACRs have the grading Good as per the minutes of the Screening-cum-Evaluation Committee meeting held on 18.3.2015. The observations of the Screeningcum-Evaluation Committee regarding applicants ACRs for 2004-05, 2005-06, applicant being under suspension from 2006 to 2008 and having been removed from service in Feburary, 2008 and away from service till October, 2009 when he was reinstated on the basis of the Tribunals orders are not relevant to the matter in view of the decisions of the Tribunal in the related OAs. The possibility of the applicant having been under-assessed for the years 2009-10 onwards can also not be ruled out in view of the clear bias and prejudice against him as evident from the various orders of the Tribunal that have been annexed with the OA. Moreover, no allegation/charge regarding sexual harassment can be considered to have been proved against the applicant prior to 20.07.2011. Hence, we would conclude that the applicant would be entitled for selection grade w.e.f. 20.7.2011.
14. The applicant has claimed PB-4 scale of pay w.e.f. 20.7.2014. However, it is seen from the material on record that the applicant is facing a charge sheet in a matter related to an incident that took place in August, 2013. After preliminary inquiry regarding the same, he was placed under suspension vide order dated 29.10.2013 (Annexure A-12). Regular inquiry had been initiated against the applicant and proceedings in the matter have still not been completed. Although the suspension of the applicant was revoked vide order dated 13.12.2014, till the issue regarding the inquiry initiated against the applicant is settled, the applicant cannot claim PB-4 scale.
15. In view of the discussion above, the impugned order (proceeding of SCEC) dated 18.3.2015 is quashed and the applicant is held entitled to financial upgradation of Senior Scale w.e.f. 20.7.2006 and Selection Grade w.e.f. 20.7.2011. The pay of the applicant may be revised accordingly and the arrears accrued to him released with interest @ 6% p.a. from the date of accrual to the date of actual release of the amount due to the applicant. This exercise may be completed within six weeks from the date of receipt of a certified copy of this order by the respondents. The claim of the applicant for PB-4 scale shall be considered by the respondents after conclusion of the inquiry proceedings that are pending against the applicant.
16. The OA is allowed with the above observations. M.A. No. 060/00784/2015 also stands disposed of accordingly. No costs.
(RAJWANT SANDHU) MEMBER(A) (JUSTICE L.N. MITTAL) MEMBER(J) Dated:
ND* 1 OA No. 060/00469/2015