Central Administrative Tribunal - Kolkata
Dr Monika Aggarwal vs National Institute Of Fashion ... on 2 February, 2022
1 . .
O.A. 858/2021, MA 342/20221, MA 4210/2021, MA 416/2021 ee sperms CENTRAL ADMINISTRATIVE TRIBUNAL - ------
KOLKATA BENCH, KOLKATA 1) RAIS A SY | (Through Audio/Video Conferencing) | ot Wi zs fs BS, [fs YH eee o.a/sesi0sse/2021 «=i (tsi('<i«é'"<S;CS*S*S*#'«é ate of Order 0, OY AMAL M.A./350/0342/2021 oe :
M.A./350/0410/2021 . M.A/860/0416/2021 ;
. Coram: Hon'ble Ms. Bidisha Banerjee, J udicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member ln the matter of :
Dr. Monika Aggarwal .
(Presently working as Director, NIFTKolkata) W/o Sh. Arun Kumar Aggarwal Aged- 53 years. | R/o-7b, Gardenica, Co-operative Housing Society, New Town, Kolkat-700156.
Applicant
-Versus-
'National Institute of Fashion Technology Through its Director General © " NIFT Campus, Hauz Khas New Delhi-110016.
seneeees Respondent _ For The Applicant(s): Mr..A. K. Behara, Counsel Mr. A. P. Singh, Counsel Ms. P. Mondal For The Respondent(s) Mr. S. Bandyopadhyay, Counse! Mr. A. Chaturvedi, Counsel _ . 2 OA, 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 ORDER@ORAL Per: Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member
1. The applicant, aggrieved with the disciplinary proceedings initiated against her, had approached. this Tribunal in the instant 0.4. primarily: praying for the following relief :-
8. "a. Call for the records of the case.
b, Quash and set aside the order dated 30.07.2018 passed by the Disciplinary Authority at A-1 and the order dated 24.08.2020 passed by the Appellate Authority at A-2.
c. Quash and set aside the suspension order dated 14.02.2017 at Annexure A-7 and direct the respondent to treat the suspension period from 14.02.2017 to 11.05.2017 as spent on duty for all purposed, :
. d, Direct the respondents to given all consequential benefits on the basis of the aforesaid prayers.
e. Pass any order of direction this Hon'ble Tribunal deems fit in the facts and circumstances of the case."
2. The applicant also prayed for an interim relief on the following context :-
ce "(i) Direct the respondent. to decide the matter of regularization of the applicant as Professor without taking into consideration the impugned orders in the light of the definition of misconduct as given in service jurisprudence in State 'of Punjab and Ors. vs. Ram Singh Ex. Constable (1992) 4 SCC 54- and Insp. Prem Chand v. Govt. of N.C.T.. of Dethi (2007) 4 SCC 566, ;
(ii) Pass any interim order or direction which this Hon'ble Tribunal thinks fit and proper in the facts and circumstances of the case."
' 3. Learned Counsel for the respondents, having taken a serious objection to the fact that the interim prayer had.not been included in the initial prayer at Para a of relief, Learned Counsel for the applicant was granted liberty to amend the prayer portion of the O.A. by incorporating the interim relief in the final relief. Vide orders dated 18.06.2021, the applicant was also given liberty to amend the | prayers both at Para 8 and 9.of the 0.A., accordingly Learned Counsel for the . .
ven < 3 O.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 "8 {d) Direct the respondent to reqularize the applicant as Professor w.e.f, the. date the persons appointed as Professor 'olongwith the applicant wheré regularized vide' order dated '17/07/2020."
9 (a) the respondent be directed to continue the applicant as Professor (Director) in the present terms and conditions during the pendency of the preset 0.A."
Accordingly, the instant O.A. has risen from two distinct cause of action, namely :
(i) Suspension and disciplinary proceedings .
b
(ii) Regularization in the post of Professor.
4, Heard Learned Counsel for both the parties who are satisfied with the quality of . audio/video during hearings. Examined pleadings, and documents on record.
' The applicant would also file a supplementary affidavit dated 17.12.2021 annexing the recruitment rules to the post of Professor, and a further supplementary affidavit dated 07.01.2022 to reiterate her claim of regularization"
to the post of Professor in the respondent organization.
5. The facts of the matter, as deciphered from the pleadings in the O.A., and, as submitted by Ld. Counsel to the applicant are as follows:-
'In. 2005, the applicant had joined as Senior Pattern Maker at the Mumbai Center of the respondent on long term contract basis. The applicant would claim that the post of Senior Pattern-Maker was equivalent to the post of Assistant Professor in all respects. The applicant would Me "woe 4:
O.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 further claim that, in July 2008, she was appointed in the higher post of Associate Professor, based on her service track record, and, that, since June 2013, she was posted at NIFT Bhubaneswar(BBSR) in her capacity as a Professor wherein she was functioning as a Joint Director of the Center.
When the post of Director of NIFT Bhubaneswar(BBSR) fell vacant upon superannuation: of the serving incumbent, she was given the additional charge of the said post of Director w.e.f, 01.01.2016. The applicant would ~ further claim, that, on 27.07.2016, the applicant was made Director of the NIFT Bhubaneswar(BBSR) on "regular" basis for a period of 5 years, in continuation of the aforesaid additional charge. As because she had, | however, initiated several measures to install discipline in the institute so 'as to strengthen the administration of the Center, she had incurred the wrath of certain Faculty members of NIFT Bhubaneswar(BBSR), some of who had reportedly complained against the applicant.
The applicant was suspended on 14.02.2017. The suspension order, however, was revoked on 12.05.2017, Thereafter, an office memorandum ~ dated 22.05.2017 was issued, seeking her version on issues detailed therein, to which she furnished a detailed reply on'04,08,2017.
on 14.02.2017, the applicant was issued a Charge Memorandum under Rule 16 of the CCS (CCA) Rules containing 5 articles of charge and, after inspection of RUDs and other documents as demanded by the applicant, she replied to the' Charge Memorandum on 19.03.2018. On 30.07.2018, the disciplinary authority issued his orders imposing a nenalty of withholding of one increment of pay for a period of 3 years which was a:
minor penalty under Rule 11(iv) of CCS (CCA) Rules, 1965. The applicant nn o> O.A. 58/2021, MA 342/20221, MA 410/2021, MA 416/2021 preferred a statutory appeal dated 14.09.2018, whereby, the Appellate Authority decided not to interfere with the findings of the disciplinary authority, but, at the same time, reduced the penalty to one increment for a period of 2 years without cumulative effect. Although the applicant had preferred a review application on 45.09.2020 and had reportedly sent reminders thereon, there being no further response from the review authority till date, and, being aggrieved, the applicant has filed the instant O.A. "Antatray S ay is
6. As the pleadings in the instant O.A. are: mostly confined to the issue of G_9/ disciplinary proceedings .and the minor penalty imposed on the applicant, at the outset, the Tribunal would adjudicate on the legal tenability of the disciplinary 'proceedings initiated against the applicant.
7. In support of her averments against the disciplinary proceedings, the applicant 'would advance grounds as under :-
«5.4 Because the article 1 of the charge memorandum pertains to the conditions of 'appointment of Ms. Namita Harichandan as Hostel Warden vide letter dated
11. 01.2017. Condition no. 4 is the said letter states that she has to be in hostel 24*7*365
- days. Besides it was stated no Earned Leave would be admissible in the first year 'of service.The said condition no. 4 which is signed by the applicant has been alleged to be a misconduct. The said letter dated 11.01.2017 is annexed herewith as Annexure-23 for _ ready reference. The same very letter in condition on, 15 clearly stated that she would be | entitled to 2.5 days of Earned Leave on each month of completed service. The condition that no Earned Leave would be admissible in the first year is a standard condition in every offer of appointment of the institute. As an illustration an offer of appointment from NIFT Bombay Campus is annexed as Annexure A-24. in any case Ms. Namita Harichandan was already | in service for last 3 years so the condition of Earned Leave not admissible in the first year had no consequence on her. The said condition of Earned Leave in the first year was incorporated as per the standard offer of appointment. There was no malice or ill will in the same. It. is submitted that putting a condition in the offer of appointment by no stretch of imagination can be defined as misconduct in service law..
Neither the Disciplinary Authority nor the Appellate Authority considered the said aspect.
oo 6 * -
O.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 On this ground alone, the findings in respect of article 1 of the charge memo is liable to be set aside.
5.2 Because the article 2 of the memo of charge Is in relation to Ms. Sasmita Dash who was an employee of M/s. Commando Security Service.NIFT BBSR had entered into an agreement with M/s Commando Security Services for supply of manpower for various categories for one year from 01/02/2016 to 31/01/2017. The said contract was not renewed after 31/01/2017. Ms. Sasmita Dash was not an employee of NIFT BBSR but was one of the supplied manpower by M/s Commando Security Service. Therefore, all her terms and conditions of service was to be routed through M/s Commando Security Service. The applicant had no role to play in the same. In any case as per article Ii, Ms. Sasmita Dash applied for maternity leave for 1 month w.e.f. 02/01/2017 to 02/02/2017, However, before the expiry of leave Ms. Dash on 23/01/2017 sought permission to resume duty from 24/01/2017. The contract of M/s Commando Security Service was expiring on 31/01/2017 and thus it was upto the company to decide who will discharge 'the duty assigned to a particular supplied manpower. The applicant had no role to play in the same. Thus, the said allegation also does not come within the definition of misconduct as is defined in service law. Neither the Disciplinary Authority nor the Appellate Authority has considered their aspect in their respective orders. Thus, the finding of the Disciplinary Authority and the Appellate Authority are liable to be quashed on this ground.
5.3 Because the article 3 is regarding changing the hostel committee vide dated 11/05/2016. It is alleged that a meeting of the previous hostel committee took on 13/04/2016 where the minutes were not finalized. It may be noted that the applicant was not a part of the committee dated 13/04/2016 and thus the non-finalization of the minutes of the meeting had no nexus with the applicant. Change of hostel committee after sometime is a regular phenomenon.and by changing the hostel committee by order dated 11/05/2016 no law was violated. Thus, the allegation in article 3 does not impute any misconduct to the applicant and therefore does not constitute any misconduct as defined in service law. Neither the Disciplinary Authority nor the Appellate Authority has considered this aspect in their respective orders. ;
5.4 Because article 4 relates to assigning parking regulation duty to a faculty member which has been alleged to be a misconduct. It is submitted that under NIFT Academic Manual, the duties of a faculty is not confined only to teaching and duties relating to.
"ancillary administrative functions are assigned to various faculty in normal course. This is the ethos in all the campus of NIFT. Thus, the same cannot be construed as misconduct as defined in service jurisprudence. Neither the Disciplinary Authority nor the Appellate Authority has considered this aspect in their respective order. Thus, the order of the Disciplinary Authority and the Appellate Authority are liable to be quashed and set aside.
7 .
0.A..858/2021, MA 342/20221, MA 410/2021, MA 416/2021 5.5 Because article 5 deal with the so-called visit of an Inquiry team for which there was no written ofder. Even on demand by the applicant no written order constituting any Inquiry team to visit the NIFT BBSR on 08-09/02/2017 has been supplied to the applicant -- till date. Any way a reading of article 5 does not disclose any misconduct on the part of the applicant as defined in-service law. It Is admitted in article of charge that when the.
applicant was asked' to leave the meeting taking place in a closed door, she left the | meeting. The allegation is that after leaving the meeting the applicant was pacing outside the closed door of the hail. This by no stretch of imagination can be construed as a misconduct. Neither the Disciplinary Authority nor the Appellate Authority has 'considered this aspect in their respective orders. 5.6 Because the order of DA is cryptic and unreasoned and thus liable to be set aside.
5.7 Because the order of Appellate Authority has been passed in a mechanical manner without considering the arguments advanced on behalf of the applicant. The same clearly amounts to non-application of mind to the submission urged by the applicant.
The appellate order is liable to be quashed.
5.8 Because the order dated 14/02/2017 placing the applicant under suspension is _ clearly unjustified in the facts of the present case and thus liable to be set aside. In a case of minor charge sheet, placing the employee under suspension is not only unheard of nor | is justified under any law."
In support, Learned counsel for the applicant would also furnish the following judicial pronouncements :-.
State of Punjab and Others Vs.Ram Singh Ex-Constable, (1992) 4 SCC 54, to contend as to what constitutes "Misconduct", .
Learned Counsel would also rely on Inspector Prem Chand vs. Govt. of India NCT of Delhi and Others, (2007) 4 SCC 566, to claim that, as in the case of the petition in Prem Chand(supra), the applicant cannot be said to have been committed any misconduct.
i ovanistrag :
ay Me a s e o uo
0.A. 858/2021, MA 342/20221, MA 4100/2021, MA 416/2021
8. Per contra, the respondents have filed their affidavit in opposition to the _ original application, to argue as follows *-
(i) That her review petition is under submission. Hence, the applicant has failed to wait for the 'outcome of such review petition and has pre-
maturely approached this Tribunal seeking relief against the disciplinary proceedings.
(ii) According: to the first article of charge, the applicant had allegedly. modified the service conditions (particularly condition no. 4), while extending the contract of one Ms. Namita, Assistant Hostel Warden(AHW), Such modification would require Ms. Namita, AHW, to be present in the Girls' Hostel in the campus 24*7*365 days, and, that, it was specifically indicated. that no Earned Leave was to be admissible to her in the first year of service. The respondents would argue that such condition regarding © denial of Earned Leave was in contravention to the O.M. No. NIET/HO/Estt. I/Agenda for BOG Meeting/20154 dated 02.02.2015 and was also violative of Central Civil Services (Leave) Rules, 4972, as well as Chapter-VIl {Leave Rules)of Chapter 10 (General Service Rules) of NIFT Establishment Manual. ~ Hence, the applicant was guilty of violating the extant rules of Government of India as well as that of the respondent institution, in inserting such a clause in the contract of Ms. Namita, assistant Hostel Warden, and, accordingly, was guilty of misconduct.
(iii) Article 2 of the charges related to denial of maternity leave and termination of services of one Ms. Sasmita Dash, who was an outsourced employee and who was serving in the capacity of Junior Assistant in NIFT . 9
0.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 Bhubaneswar(BBSR). According to the respondents, the applicant is duty bound to function as per. Government of India instructions read with notifications of NIET, and, that, NIFT being the Principal Employer, was responsible for any violation/non-compliance of statutory liability on part of the Contractor. The applicant had failed to ensure that the contract. . agency abided by the same. The applicant's admission' that she was not aware of basic statutory duties of the Principal Employer is itself a misconduct. -
(iv) The charges at article 3 alleges that the applicant, in her capacity of the then Director, NIFT Bhubaneswar(BBSR), had prepared a revised minutes of the meeting held on 06.04.2016 by the Hostel Committee Members and when the members of the Hostel Committee refused to put their signature therein, reconstituted the Hostel Committee. Respondents would hence allege that the applicant had failed to act with fairness and impartiality and therefore, had violated the conduct rules. The respondents would "however, while admitting that, while the applicant was well within her rights to reconstitute the Hostel Committee, would argue that the said reconstitution was done in an arbitrary and high handed fashion.
(v) Article 4 alleges that one Ms, Harsh Rani, Asst. Professor and Advisor, Ethical Club, was entrusted by the applicant to ensure compliance of campus parking arrangements and to submit a report, every Monday. As such assignment of duties was beyond the responsibilities to be entrusted to faculty member, the applicant was alleged to have vitiated the _ atmosphere of the respondent institution at Bhubaneswar and was alleged --
to have committed misconduct. bay 10 O0.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 |
(vi) The respondents would go on to argue that the actions of the applicant were contrary to NIFT Academic Manual and Conduct Rules. The 5" Article
-of charge alleges that when the Additional Director General , NIFT and another Professor/Dean were entrusted to ascertain and resolve the | situation prevailing in the Bhubaneswar(BBSR) campus in view of the numerous complaints; they ascertained that the students were also aggrieved with the conduct of the Director. The applicant was hence asked to leave the venue of exclusive interaction with the students. It was found, however, that the applicant adamantly stayed back in the venue, and, when she finally jeft, she continuously paced outside the closed door of the venue, creating thereby an untenable situation leading to aborting the enquiry midway. The applicant was also reported to have behaved in an insubordinate and hostile manner towards both Committee members and that such misbehavior amounts to misconduct.
The respondents would hence argue that the applicant was indeed guilty of misconduct, and, accordingly, the disciplinary authority, vide his order dated 30.07.2018, imposed penalty under Rule 16 of CCS (CCA) Rules, .1965 by withholding of one increment of pay of the applicant/charged officer for a period of 3 years.-The applicant, thereafter had, preferred an appeal whereby the Appellate Authority decided not to interfere with the findings of the disciplinary authority, but, at the same time, reduced the penalty to one increment for a périod of 2 years.
According to the respondents, as.a review petition is still pending with the respondent authorities, the applicant has acted prematurely in | approaching the Tribunal prior to disposal of such review application.
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- OA. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021
9. This Tribunal would therefore proceed to examine whether the applicant's behavior as brought out in five articles of charges vide charge memorandum > dated 14.02.2017 can indeed be construed as misconduct. While Learned Counsel for the applicant would rely on Ram Singh(supra) and Prem Chand(supra), the | respondents would place reliance on Mihir Kumar Hazara Choudhury vs. Life SO Insurance Corporation and Another, (2017) 9 SCC 404 to argue that "misconduct | means acting beyond authority". The respondents would also refer to the decision in Damoh Panna Sagar Rural Regional Bank and Another vs. Munna Lal.
Jain, (2005) 10 SCC 84 to submit that "Court's interference with the punishment is called for only when it is so disproportionate as to shock the judicial conscience", and that, the instant matter the penalty does not call for interference, and, also, that ,scope of judicial review is limited to deficiency in decision-making process and not the decision itself."
Stroud's Judicial Dictionary defines "misconduct" as follows:-
"Misconduct means, misconduct arising from ill motive and acts of negligence."
"S. Misconduct has been defined in Black's Law Dictionary, 6" Edn. At p. 999, thus :
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; in its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness." .
dn Sharadaprasad Onkarprasad Tiwari " Divisional Superintendent, Central Railway, Nagpur Division, Nagpur (1960) ILLJ 167 Bom and Satubha K. Vaghela v. Moosa Raza (1969) 10 GLI 23, a view was held that code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service, and, hence, it would follow that the conduct which is blameworthy for the Government servant in the context of conduct rules would be a . ie ;
0.A, 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 misconduct. If a Government servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct. A disregard of an tial condition of the contract of service may constitute misconduct.
In Glaxo Laboratories vs. The Presiding Officer, Labour 1984 AIR 505, the Hon'ble Apex Court held that:
So eanenees In order to avoid any ambiguity being raised in future and a controversial interpretation question being raised, who must make it abundantly clear and incontrovertible that the casual connection in order to provide linkage been the alleged act of misconduct and employment must be real and substantial, immediate and proximate and not remote or tenuous."
-Hence, the definitions and related judicial decisions lead to the following \ inferences :-
A "misconduct" arises from
(a) A disregard of essential conditions of contract of service.
(b) Arising from ill-motive and acts of negligence. :
(c) Linkage between act of misconduct and employment is to be real and substantial, immediate and proximate, and not remote or tenuous.
(d) The Hon'ble Court had held in Glaxo Laboratories(supra) that it is obligatory upon the employer to draw with precision those acts of omission and commission, which the establishment would constitute as misconduct, and, as penalty is imposed for misconduct, the workman must know in advance which act of omission and commission would constitute misconduct to be visited with penalty. The statutory obligation is to prescribe with precision all the action of omission and commission which would constitute misconduct..
vo 13 . :
_ O.A. 858/2021, MA342/20221, MA 410/2021, MA 416/2021 © -
10. Upon hearing both Learned Counsel, having examined the facts, and the applicability of legal ratio thereupon, this Tribunal would deduce as follows :-
(i) Regarding the Article of charge no. 1, the applicant would defend herself.
with a contract document issued by the NIFT Mumbai dated 04.11.2015 wherein the same terms and conditions have incorporated as in the contract document issued to the Asstt. Hostel Warden, Ms. Namita. In the ~ event that the Mumbai contract had violated provisions of CCS Leave Rules as well as the NIFT Academic Manual, actions should have been taken against the Mumbai NIFT too. No such penal action has been brought on. record. The contract dated 04.11.2015 does not appear to have been challenged or quashed either by executive decisions of NIFT or by judicial 'pronouncements. We would therefore hold that, in the absence of specific provisions to the contrary, the applicant's reliance on such contract does .
not establish that she is guilty of misconduct.
Further the respondents have not clarified as to which exact provision of the NIFT Conduct Rules were violated as contracts are generally based on standardized documents. Respondents have also failed to demonstrate that the applicant was made aware of standard contract documents that differed from the Mumbai model. The applicant, on the other hand, appears to have functioned in good faith in ensuring the continuous presence of the Asstt. Hostel Warden in the campus 50 as to be able to address any eventuality as well as welfare of the students.
-(ii) Regarding the allegations in Article 2 that the applicant failed to work in terms of the duties of the Principal Employer, it has been averred by the Ke a 14 OA. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 applicant that the contract of the security agency was to come to an end on 31.01.2017. Accordingly, unless renewed, the applicant, even as a principal employer, was not duty bound to intervene in a 'third. party contractual arrangement that came to an end as per terms of the contract.
In the event Ms. Sashmita Dash was entitled to Maternity Leave, her prayer would be subject to the bilateral agreement between her and the contracting 'agency. The allegation that the applicant had failed to . introduce such welfare measures in a bilateral agreement between the contracting agency and the contractual staff of such agency is not only a legally untenable allegation but is an attempt to establish remote, abstract and non substantial connection with misconduct.
In this regard, we would refer to the ratio in Glaxo Laborotaries (supra), which ruled that the employer has to, in advance, notify what construes code of conduct. The applicant's admission that she was unaware of the duties of the Principal Employer begs the question as to whether NIFT had notified/informed employees of such duties, in advance.
(iii) The third allegation is on the reconstitution of the Hostel Committee. -- Such reconstitution is well within the purview of the role of the campus Director, as admitted by the respondents. Accordingly we fail to understand | how such permitted activity of reconstitution can be Construed as a misconduct when it comprises as essential activity under the contract of service.
Ga ee 15
0.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 tiv) Regarding the fourth article of charge, the respondents have not brought before us the staff strength of NIFT Bhubaneswar at the material point of time when Ms. Harsha Rani, Asst. Professor and Advisor, Ethical Club was asked to supervise the parking arrangements and to submit a report . The fact that the applicant/charged officer had asked Ms. Rani to look into the parking arrangements and to report thereon, is indeed in the interest of disciplined infrastructural maintenance of the campus. In the event Ms.Harsha Rani, Asst. Professor and Advisor, Ethical Club had objected to the on grounds of her limited responsibilities as a faculty, the applicant/charged officer could have assigned the task to another member/staft of NIFT Bhubaneswar, subject to availability of helping hands therein. The applicant's action amounts to be in the interest of. maintenance of discipline in campus infrastructure by | controlling unauthorized parking.
As the applicant's actions could not be ascribed to ill motive and acts of negligence rather to her diligence in ensuring proper environment in the campus by controlling parking movement of vehicles, Article 4 of charges fails to qualify as a misconduct.
(v) Regarding the fifth allegation of the visit of the Inquiry team and. ' misbehavior of the applicant, the applicant's behavior at the worst, could be described as abrasive and defensive, but hardly fails to qualify as a.
misconduct in the conduct rules.
The respondents have failed to cite a single provision of such conduct rules under which the five charges could be established as misconduct. The a 16
0.A. 8583/2021, MA 342/20221, MA 410/2021, MA 416/2021 casual connection between each of the charges and her role as campus Director are remote and tenuous. The respondents could not establish real and proximate connection between the applicant/charged officer's conduct and the terms of employment.
11. We would reiterate that the respondents have not brought before us any conduct rules of NIET nor have specifically pointed out the exact clause of conduct rules which have been violated by the applicant.
We would decipher that the applicant had tried to be a strict administrator, who had intended to impose discipline in the campus. Such attempts at discipline were purportedly resented by other members who found themselves at the receiving end and hence, indulged in lodging complaints against the applicant's | apparently dictatorial behavior.
The respondents would rely on Mihir Kumar Hazara Choudhury(supra) to argue that acting beyond authority itself is breach of discipline constituting misconduct. This judgement of Hon'ble Apex Court in Hazara Choudhury (Supra) was with respect to-a custodian of financial deposits. Hon' bel Apex court, inter alia, observed as follows -- "Good conduct and discipline are inseparable from the functioning of every employee/officer of the institution and more when the institution deals with money of the customers."
In the instant matter, the applicant/charged official had acted on the authority of the Mumbai unit date 04.11.2015 that had never been declared as _ unauthorized (as per Article of charges), was alleged not to have exercised her authority as Principal Employer in article 2 of the charges, admittedly had acted within her authority in changing the composition of the Hostel Committee (article \ / | oy O.A, 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 | campus (as per article 4 of the charges) which cannot be said to be beyond the authority of the campus Director, and, although, allegedly, acted defensively to the committee members (article 5 of the charges), the question of acting beyond | authority does not arise. Hence Hazara Choudhury (supra) does not advance the assertions of the respondents.
Respondents would also place reliance on Damoh Panna Sagar Rural ' Regional Bank(supra) to argue that judicial review is limited to the deficiency in decision making process and not the decision itself. This Tribunal, in its process of adjudication, is examining the legal tenability of terming the applicant's/charged officer's action as misconduct and the related deficiencies in such process.
The applicant/Learned Counsel on the other hand has been successful in establishing with reference to Prem Chand(supra) that the behavior of the applicant could-not amount to misconduct in any circumstances. The decision in Prem Chand(supra) is quoted below as follows :- (with supplied emphasis) "10. In state of Punjab v. Ram Singh, Ex-Constable it was stated : (SCC pp. 57-58, para 5) Misconduct in office has been defined as :
'Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office-holder had not right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.'" --
11, in P, Ramanatha Ajyar's Law Lexicon, 3" Edn., at p. 3027, the term "misconduct" had been defined as under:
"The term 'misconduct' implies a wrongful intention, and not a mere error of _ judgement. , Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word 'misconduct' is a relative term, and has to be construed with reference to © the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. 'Misconduct' literally means wrong conduct or improper conduct."
hy
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; 18 OA, 858/2021, MA 342/20221, MA 410/2021, MA 416/2021
12. It is not in dispute that a disciplinary proceeding: was initiated against the appellant i in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behavior in relation to discharge of his duties in service, which was willful. in character. No such finding was arrived at. An error of judgment, as noticed-hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of india v. J. Ahmed whereupon Mr. Sharan himself has placed reliance, this Court held so stating (SCC pp. 292-93, para- 11) "11, Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Perce V. Foster). A disregard of an essential condition of the contract of service may constitute misconduct[see Laws v. London Chronicle {Indicator Newspaper)]. This view was adopted inShardapradsad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur and Satubha K. Vaghela v, Moosa Raza. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
'Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct'."
13. The Tribunal opined that the acts of omission on the part of the appellant were not a mere a error of judgment. On what premise the said opinion was arrived at is not clear. We have noticed hereinbefore that the Appellate Authority, namely, the Commissioner of Police, Delhi; while passing the order dated 29-08- 2003 categorically held that the appellant being a raiding officer should have seizéd the tainted money as case property. Ina given case, what should have been done, is a matter which would depend on the facts and circumstances of each case. No hard-and-fast rule can be laid down therefore.
14. The Criminal Court admittedly did not pass any adverse remarks against the appellant. Some adverse remarks were passed against the investigating officer, who examined himself as PW 4 as he had handed over the tainted money to the complainant PW2.
15. A finding of fact was arrived at that the accused did not make demand of any amount from the complainant and thus no case has been made out against him. This Court in Zunjarrao Bhikaji Nagarkar v, Union of India has categorically held : (SCC p. 430, para 42) "42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instant to show that in similar case the appellant invariably imposed penalty."
Accordingly we quash the orders of suspension as well as the orders of the Disciplinary and the Appellate Authority and direct the respondent authority to act in-accordance with law.
19O.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021
12. We would next address thé issue of regularization in the post of Professor.
The RRs for the post of Professor are extracted as follows :-
candidates who do -not possess Ph.D. degree y.shall be required to obtain the same within 5 years from the date of appointment.
Total min. relevant experience required:
(i) 4-years UG Diploma/Degree-15 years (+1 'yearsif it's-a 3-
year UG Degree/Diploma) (ti} 2 years PG Diploma/degree-2 years(+1 years if duration <2 years) " (iii) Ph.D degree- 8 years + > wy u Oo = = Se. 3 a=) ' - ° oy s @ fe mo 8
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- 2 6 255 es Le) oOo 8 Me oy oc . ra @ 2 = a £9 a = 4 c ess a's = 2g B 3 e >> >o ; 2 o = S 2-35 ae # € & S = +... i 2 fo) w vo "eo & $5 o a 7 te ze ¢ ra ce Yc i822 |» ra pe 5 9 5 S63 |s2 = Fi =z = £ ° = 5s )/48 | s 3 E BE. 5 88.8 a 3 @ oq = A by = os =] SEx ~ E E d 3 > 2 @, 35 3 7] So 8 us 2/46 a 3 < a Ye a aaa £E Pro | *| Gro | PB4- 'Selection' | Upto 50 | UG/PG Diploma/Degree | 1 Year | Promation Associate Professor or will include | years in relevant area (as per failing which | equivalent level regularly fess uPA | Rs 37400 (Maximum table "A") from a by Direct | recrulted/promoted as per Personal rn . as Recruitment | the prevailing GSR with | age limit | recognized institute or or Interview laxab! Uni it f total 10. years of
- by relaxable | | nivers| vo oO experience in ; upto 7 years | 'national/international teaching/research/industr 67000+8 } Selection in case of | repute, with required y out of which at least 5 Committee | NIFT years of relevant years must be at the level 700{GP) - employees experience In of regular Associate
- | and upto 5 | teaching/research/indus Professor or equivalent.
years try of which at least 5_ ;
deserving years must be at the aataees PhD. De oe hall candidates - | level of - Associate be required to obtain the possessing Professor and {or} same within 5 years from higher equivalent to NIFT pay the date of appointment educational scales for the cadre. to be eligible for next qualification promotion. They can apply s/experience | Candidates with a Ph.D.- for study leave as per ) degree in the relevant NIFT's GSR for the area will be given purpose.
preference. All Exceptional published/ professional work can be treated equivalent to Ph.D, a 20 O.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 for the post of Professor :-
And NIFT rules 2020.for recruitment of faculty had formulated the following rules Sl. | Categories Details No.
1. | Name of the post Professor
2. | Number of Post 209 (2020)*
3. | Classification of the post GroupA 4, | Level in the pay matrix Level-13
5. | Selection past or non-selection post Selection
6. Age-limit for Direct Recruits on contract 50 years ' ; Maximum upper age-limit for NIFT employees may be relaxed upto five years or total length of service . rendered fon regular and/or long-term contract basis) ; whichever is less. -_ Educational and other qualifications required for | PhD from a recognized University/Institution in a subject direct recruits on contract relevant to any of the Competencies as mentioned in Annexure-B, with 15 years' experience in a recognized University or Institution in teaching or research or in relevant industry.
8. | Whether age and educational qualifications | Age-No prescribed for direct recruits will apply in the | Educational Qualification-Yes case of promotion
9. Period of probation, if any One year for direct recruits
10. | Method of Recruitment whether by direct | 10% by direct recruitment recruitment or by promotion or by | 10% by deputation deputation/absorption and percentage of the | 80% by Promotion failing which by Deputation vacancies to be filled by various methods ,
11. | In case of recruitment by promotion/deputation | Promotion:
or absorption grades, from -- which | Associate Professor working at Level-11 in NIFT having 7 promotion/deputation or absorption to be made | years of regular service in the grade and possessing PhD from a recognized University/Institution in a subject relevant to any of the Competencies as mentioned in Annexure-B, OR.
Associate Professor working in Level-11 with regular service or 7 years or combined service of 14 years or more in NIFF as Associate and Assistant Professor in Level-l10 and possessing PhD from a_ recognized University/Institution in a subject relevant to any of the Competencies as mentioned in Annexure-B, Deputation: . ;
Teaching faculty in any University/Institution under the Central Govt./State Govt. holding analogous' post on regular basis or with at least five years of regular service ' in Level-12 with PhD from a _ recognized University/Institution in a subject relevant to any of the Competencies as mentioned in Annexure-B. Period of deputation shall be three years. Tenure can be extended for a maximum period of two more years. ' Maximum age limit for appointment shall not exceed 56, years as on the closing date of receipt of applications.
12. | if a Departmental Promotion Committee exists | As per statute what is its composition bbe ! 21
0.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 The minutes of the Selection Committee dated 25" February, 2020. had, in addition to the RRs, referred to the following parameters to decide on the eligibility for the regular post of Professor :-
"Minutes of the Meeting of the committee for_reqularization of Professors working on long term contract in the level 13 held on 25"" February 2020 at 10:00 am in NIFT, Head Office, New Delhi.
The meeting of the Selection Committee comprising the following members was held on 25" February, 2020 at NIFT Head Office to consider the regularization of Professors who are working on long term contract basis for . more than 05 years in Pay Level 13 in NIFT:
1, Shri Ravi Capoor, Secretary Textiles and Chairperson BOG
2. Shri Vijoy Kumar Singh, AS &FA, MoT and BOG member
3. Shri Shantmanu, DG-NIFT 4, Shri Jogiranjan Panigrahi, Joint Secretary, MoT & BOG Member
5. Prof. Lalit Kumar Das, Ex-industrial Design Head, IIT Delhi, Expert
6. Prof..Sudhir kK. Jain, Former Vice Chancellor, Shri Mata Vaishno Devi University, Expert , 2, The Board of Governors of NIFT in its meeting held on 15.02.2018 has approved for regularization of all employees after five years on long term .
contract subject to satisfactory performance which was notified vide OM No. 1234(1)/NIFT/HO/Estt-Hl/HR Policy/imp/2018 dated 19.03.2018.
3. In compliance of above Board decision, two Professors namely Dr. Kislaya Choudhary and Dr. Sameer Sood working on long term contract, who were recruited through due selection procedure i.e. written test, presentation and interview and completed 5 years service were considered for regularization.
4. The Committee decided to follow DPC procedure for regularization and considered the following records to assess the suitability of Professor for regularization: '
i) Qualifications as per RR
ii) APAR Grading it) Student feedback .
iv) Vigilance Clearance --
5. The Committee further decided the following criteria for assessing their suitability. Minimum three APARs of Outstanding Grading out of five of preceding boa 22 O0.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 available five years and 'student feedback of consistently 80% or above in' all subjects forall parameters in all semesters under examination,
6. The Committee was informed that both Professors are having Ph.D degree and are clear from Vigilance angle. APARs grading of both of them are meeting the criteria mentioned above.
7. The qualitative student response was seen to be generally positive across sememseters, meeting the above criteria. Accordingly, on the basis of service cords, performance as reflected from the APARs for the last five years and student feedback, the Committee found both Dr. Kislaya Chaudhary and Dr. Sameer Sood, Professors eligible for regularization and recommended them i. . .
regularization.
8. The inter-se seniority of regularized of these two Professors will be fixed on the basis of their merit drawn up at the time of recruitment.
9. None of the candidates considered for regularization is related to the Members/Chairperson of the Committee,"
Hence, as per the Recruitment Rules and, as per the minutes. of the Screening Committee, we would identify the following eligibility conditions and parameters for the post of Professor in the respondent institution :-
_ | As per the earlier recruitment rules, _(a) The post of Professor is to be filled up by promotion, failing which by direct recruitment.
(b) The candidate must be an Associate Professor or equivalent with total of
10 years of experience in teaching/research/industries of which at least 5 years must be at the level of regular Associate Professor or equivalent.
(c) Ph.D /exceptional published work to the merit of such candidate, As per the revised Recruitment Rules of 2020, the post would be filled up by Promotion or deputation and would require the candidates to be ,
(a) Associate Professor working at Level-1i in NIFT having seven years of regular service in the grade with Ph.D. rc | 23 O.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021
(b) Associate Professor working in Level-11 with regular service of seven years or combined service. of 14 years or more in NIFT as Associate and Assistant Professor in Level-10 with Ph.D. The Screening Committee identified the following parameters in addition to the recruitment rules:-
(a} APAR Grading
(b) Student feedback
(c) Vigilance clearance.
Regarding the applicant's claim for regularization in the post of Professor, the applicant would claim that :-
(i) She worked as an Assistant Professor (Senior Pattern Maker) w.e.f. 2005 for 3 years in NIFT Mumbai which was equivalent to the post of Assistant Professor, a claim denied by respondent on her equivalence.
(ii) Was elevated to the post of Associate Professor based on her-track record w.e.f 2008.
(iii) Was posted as Professor/Joint Director in NIFT Bhubaneswar in June 2013 and, thereafter joined as Director in 2016 in the extant capacity of Professor for a term of five years.
(iv) Hence having put in five years as regular' Professor in NIFT Bhubaneswar, would stake her claim to the substantive post of Professsor as her colleagues Dr. Kislaya Chaudhary and Dr. Sameer Sood, who were so regularized vide Selection Committee meeting dated 25.02.2020, be eed me TE 24 .
O.A, 58/2021, MA 342/20221, MA 410/2021, MA 416/2021
(v) That she has been graded as "outstanding/very good" in the APARs and "that 47.59 % of students gave her competence an average feedback of 86.19 and it's only the pending 'clearance from vigilance that debarred her from regular appointment as a Professor.
On the other hand, the respondents would counter the claim: of the applicant to assert that she has no rights to regularization in her capacity as Professor of respondent institute on the following grounds -
' __ (i) The spplicant was neither appointed nor did she hold any substantial post for a long time in the NIFT to merit t the 'eligibility criteria of 5/7 years as regular Associate Professor.
| (ii) She was initially appointed in 2005 as a Senior Pattern Maker for. 3 years. Although the applicant would claim that this post is equivalent to that of Assistant, Professor, the respondents would deny this claim.
(iii) Before conclusion of her 3 year contract period as Senior Pattern Maker, the applicant applied for the post of Assistant Professor in NIFT on contract basis and was appointed accordingly .in June, 2008 on a 3-year | contract, 4
(iv) That, the applicant applied for the post of Professor in June, 2013 and was accordingly engaged on 3-year contract at NIFT Bhubaneswar as Joint Director.
(v) The post of Director NIFT Bhubaneswar at NIFT campus fell vacant and _ the applicant applied for a contractual appointment as a Director. She was |! t onda Sek 25
0.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 engaged accordingly on a 5-year contract on 28.07.2016 which would have been logically concluded on 27.07.2021.
(vi) Hence, she has not held any regular post for a continuous period of 5 years and most of her contractual appointments have been truncated midway as she has moved on to other contractual assignments in the respondent organization.
(vii) The post of Campus Director by direct recruitment on contract/deputation is independent of any academic position of the institute as per the recruitment rules, which are as under :-
Educational and other | Recruitment by Deputation Period of qualifications required for ° deputation/contract direct recruits on contract Qualification: Officers of the Central-| Period of Post Graduate degree from.| Govt./State deputation/contract shall recognized University/Institution | Govt./UT/Autonomous be three years.
; Organization/PSUs holding Experience:
Twenty years of administrative/academic/manag erial experience in Government Organization/Autonomous Body/ Statutory Body/University/Institution out of which at least fifteen years at supervisory level(Level-10 or equivalent) -
Age:
50 years Maximum upper age-limit for NIFT employees may be relaxed upto five years or total length of service rendered (on regular and/or long-term contract basis) whichever is less, analogous post on regular basis with at least 2 years' experience on the post at the jevel of Director of Govt. of India or equivalent: with relevant experience in administrative/establishment/a dmissions/Academic matters.
Maximum age limit . for appointment shall not exceed 56 years as on closing date of _receipt of applications Tenure can be extended for a maximum period of two more years.
Further in MA/6 to M.A. 416/2021, the position of Campus Director as per noted as under:-
Notification dated 13" May, 2020, the functions of the Campus Director was ; 26
0.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 "22. Campus Directors :-
(1) The Campus Director of an Institute Campus shall be appointed by the Board in a pay scale equivalent to the Director to the Government of india on deputation or contract for a period not exceeding three years :
Provided that the said period of three years may be extended by the Board for a period not exceeding two years.
- (2) The Campus Director shall, under the overall supervision of the Director General-
(a) function as the administrative head of the Institute Campus including supervision and review of academic, administrative and project related activities of the Institute Campus, promotion and protection of the interests of the Institute Campus among stakeholders including alumni and furtherance of activities in pursuit of improvement of educational and academic stature of such Institute Campus;
(b) function in accordance with delegation of administrative and financial powers as laid down by the Board from time to time;
(c) approve short term contractual appointments for the positions classified as Group 'C' or equivalent positions on the recommendations of the Campus Selection Committee constituted for this purpose as per the provisions of the Statute 28 and the same shall be reported to the Director General;
(d) send the members of the staff and faculty for training or for a course of instruction inside India subject to such terms and conditions as may be approved by the Board from time to time;
{e) make recommendations regarding participation of the members of the staff or faculty in training, course of instruction, workshop, conference and the like outside India subject to such terms and conditions as may be approved by the Board from time to time."
13. Respondents would cite judgements in P.T.R. Exports(Madras) Pvt. Ltd. Vs. 'Union of India and Others [(1996) 5 SCC 268] to argue that " the Court would not bind the Govt. to its previous policy by invoking the doctrine of legitimate expectation of the applicant unless the change in policy its vitiated by mala fides or abuse of power which the applicant must plead and prove to the satisfaction of _the Court." and that "It would be open to the Government to evolve the new schemes and the petitioners would get their legitimate expectations accomplished in accordance with either of the two schemes subject to their satisfying the conditions required in the scheme."
Nahe MH _ 27
0.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 Respondents would further refer to the judgement in State of Madhya Pradesh and. Others vs. Amit Shrivas civil appeal no. 8564 of 2015, wherein it was held that, "preconditions and criteria specified in applicable policy/rules must be strictly followed."
Further reliance has been placed by respondents in Pankjeshwar Shara and Others vs. State of Jammu and Kashmir and Others Civil Appeals Nos. 3904-905 | of 2020 with nos. 3907-34 of 2020, to argue that, "similar benefits cannot be claimed which would perpetuate mistake- negative equality cannot be claimed to perpetuate further illegality."
. . Respondents would therefore contend that government is not barred by legitimate expectations in evolving new policy, criteria specified in specific policy/rules to be strictly satisfied, and that negative equality cannot be claimed | to perpetuate further illegalitiy so as to establish that the applicant's claim for regularization. has to be strictly as per rules.
14, Upon a reference to the criteria laid down in the recruitment rules for the post of Professor in NIFT as well as other parameters, we infer:-
(i) That the applicant had put in 3- years as Senior Pattern Maker from 2005-
2008. In the absence of documents substantiating equivalence to the post of Assistant Professor, a claim strongly disputed by respondents, we cannot hold that the applicant had ever served in the regular capacity of an Assistant Professor at any point of time.
{ii) The applicant was engaged on contract as an Assistant Professor for 3 years in 2008.
be [peenncr ne * 28 O.A. 858/2021, MA 342/20221, MA 410/2021, MA 416/2021 (iii} The pleadings are silent about her status w.e.f. 2011( when her contract as Assistant Professor was scheduled to expire) till June, 2013.
(iv) In June 2013, the applicant joined as Joint Director in. NIFT Bhubaneswar and
(v) In June 2016, took over as Director in NIFT Bhubaneswar itself.
(vi) The post of Campus Director is essentially an administrative post. The recruitment rules of campus director is distinct from that of a Professor, hence, even if the applicant had been part of the curriculum committee or had handled a project at NIFT Bhubaneswar, that does not entitle her to the post of a professor in contravention of the recruitment rules.
(vii) The applicant claims that she had joined NIFT Bhubaneswar as a Professor.
No such appointment letters have been brought on record. --
(viii) The pendency of vigilance clearance stood in her way of selection as Campus Director in 2021 and was not related to.the selection process of a professor.
Accordingly, we decipher that, at this stage, the applicant is decidedly not qualified to be. regularized in the substantive capacity of Professor in the respondent institution. The respondent authorities, however,.should consider her prayers for regularization :as per her eligibility in due course without any reference to the penalty orders that stands as quashed by this Tribunal.
hk ea 29 ' O.A. 858/2021, MA 342/20221, MA 4410/2021, MA 416/2021
15. The interim orders of this Tribunal dated 15.07.2021 stand as vacated.
The respondent organization is at liberty to fill up the post of Director, NIFT Kolkata in accordance with law.
M.A./350/0342/2021 praying for amending relief of the O.A., M.A./350/0410/2021 praying for modification of order and M.A./350/0416/2021 praying for vacation of interim orders, stands disposed of accordingly.
16. The O.A. stands as partly allowed. No costs.
_ _ (Dr. Nandita Chatterjee) . . (Bidisha Banerjee) Administrative Member Judicial Member s}
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