Central Administrative Tribunal - Kolkata
M C Ghatak vs Education on 12 June, 2023
eed neeeterlites Ps X are Roesnasssrnses con a 2- OA 923/2018 . 7. The Principal, Dr. B. R. Ambedkar Government Institute of Technology, Pahargaon, Port Blair. 8... Shri Utpal Sharma, Principal, Dr. B. R. Ambedkar Government Institute of Technology, Dollygunj, Port Blair. sesserene Respondents For The Applicant(s): Mr. S. K. Mukherjee, Counsel . Mr. J. R. Das, Counsel - For The Respondent(s): Mr. R.-Halder, Counsel Mr. D. Chowdhury, Counsel ORDER
Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"(A) An order do issue quashing the order of appellate authority dated 13.04.2016 issued in the name of President of India by the Ministry of Home Affairs.
(B) An order do issue quashing the inquiry report dated
02.05.2012 submitted by the inquiry officer to the disciplinary . authority as the same is contrary to the provisions of inquiry, which is followed by the Inquiry Officer.
(C) An order do issue quashing the Order no. 4040 dated 27/29.11.2012 issued by the disciplinary authority as the impugned order is completely perverse without application of any judicial mind with further direction upon the respondent authorities to include the withheld increment and pay arrears thereof to the applicant with interest thereupon.
(D) Any such orderforders be passed and/or direction 'or directions be given as this Hon'ble Tribunal may deem fit and proper. --
(E) Cost and incidentals to this application."
2 For the sake of clarity, facts.in the case are delineated and discussed hereinunder :-
3 OA 923/20182.1 The applicant, while working as a Lecturer in Dr. B. R. Ambedkar Institute of Technology, was issued charge sheet by the Disciplinary Authority (The Administrator, A & N Islands) vide charge memorandum dated 19.07.2011 containing the following charges :-
(i) That the applicant has entered the marks on the subject taught by him in the software "Student Information System (SIS)" without fully evaluating the answer script.
(ii) The marks entered by the applicant in SIS do not tally with the marks that are awarded to the students by the applicant.
(iii) The applicant has put the marks on the front page of the answer scripts and in some cases the total of which do not tally with the marks awarded by him against cach of the answers.
(iv) The marks entered by the applicant in SIS do not tally with the marks that are awarded to the students after evaluation/ re-evaluation by the Committee.
2.2 On denial of the charges by the Charged Officer, IO and PO were appointed by the Disciplinary Authority for conducting inquiry. The IO conducted the inquiry and submitted his report on 03.05.2012. The IO in his findings concluded that the following charges against the CO were proved : (i) The Charged Officer/applicant has entered the marks for the subject taught by him in the software "Students Information System (SIS)" without fully evaluating them in the answer scripts, (ii) the marks entered by the CO in SIS do not tally with the marks that are awarded to students by the CO in the answer scripts, (iii) the CO has given marks in the front page of some of the answer scripts where the total of the marks awarded by him against each of 4 OA 923/2018 a the answers does not tally. However, the charge that the marks given by the CO do not match with the marks awarded after evaluation/ re-evaluation of the same answer scripts by the Committee was not proved as the answers are descriptive and not objective type format.
2.3 The Disciplinary Authority imposed a penalty of withholding of one increment of the Charged Officer/applicant vide Admn's order dated 27/29.11.2012. The applicant made an appeal before the Appellate Authority (Hon'ble President of India) on 01.01.2013. The appeal was examined by the Ministry of Home Affairs in consultation with Union Public Service / Commission (UPSC) and based on their findings the Hon'ble President of India agreed with the quantum of penalty imposed by the Disciplinary Authority. The appeal was disposed of by the Hon'ble President of India vide order dated 13.04.2016.
2.4 Aggrieved by the rejection of his appeal by the Appellate Authority, i.e., President of India, the applicant has filed the present original application.
3. The applicant in this OA has given his version of the chain of events leading to his suspension and then being served with a charge sheet under Rule 14 of CCS (Conduct) Rules, 1964. He has alleged that the Principal of the College where the applicant is employed as a Lecturer has been harassing the applicant for several years and the applicant had even filed criminal case against the Principal which was going on in a criminal Court. On 28.03.2011, the Principal came to the applicant's room on the pretext of conveying birthday wishes to the applicant and forcibly seized some answer sheets which were in the possession of the applicant for evaluation. The applicant 5 OA 923/2018 oO was then put under suspension followed by service of charge sheet on him.
Details of charges against the applicant have already been given above.
3.1 The applicant denied the charges and based his defence in the inquiry proceedings on the ground that the computer records showing that he had accessed his computer to enter the marks in the SIS were not legally valid documents and since the charges and the conclusion in the inquiry report had relied on these documents to prove the charges, entire disciplinary proceedings are bad in law and should be quashed.
3.2 Learned Counsel for the applicant also submits that as per rule, UPSC's advice should have been taken by the Disciplinary Authority before imposition of penalty. This was not done and advice of UPSC was taken only at the time of finalization of his appeal. Also, he was not provided with a copy of the UPSC advice before action was taken on the basis of such advice. Since the laid down procedure was not followed while passing orders by the Disciplinary Authority and the Appellate Authority, these orders do not withstand legal scrutiny and are liable to be quashed.
4, Per contra, the respondents in their reply, have countered the applicant's contentions that the disciplinary proceedings were initiated with malafide intentions at the behest of the Principal. The respondents aver that the charges are based on facts and there was no question of malafide in initiating the disciplinary proceedings against the applicant. Respondents have reiterated that the log in data of the computer in the applicant was obtained from the applicant's room and was not tampered with. This data shows that the applicant had logged into his computer with his secret password and had entered the marks in the SIS. Issues raised regarding the \ o 6 OA 923/2018 validity of SIS and other software reports used by the college because they were not digitally signed and there was no display of license, are irrelevant in the present context according to the reply filed by the respondents.
4.1. Learned Counsel for the respondents submits that the respondents have rightly followed DoPT instructions regarding conduct of disciplinary proceedings as the amended rules came into force in 2014 whereas the Disciplinary Authority had already passed the punishment order in 2012.
5. Heard both sides at length. Perused material on record.
5.1 Charges against the applicant are that he entered marks in the SIS without actually evaluating some of the answer sheets. Even in sheets which had been evaluated, there was a difference between the total marks obtained as recorded on the top page of the answer sheet and the sum of marks awarded to individual answers. There was also a significant difference between the marks awarded by him and those awarded by a re-evaluation committee. In order to prove that it was, in fact, the applicant who had entered the marks, log in data from his computer was produced as evidence which showed that the marks were entered in the SIS through his computer at a time when the applicant was logged in with his password into the same computer. The applicant has strenuously tried to prove that somebody else may have logged into the computer at the material time. It is obvious from the inquiry report that the computer in question was in the room of the applicant which was kept under lock and key by the applicant. Similarly, the password for logging in to his account was secret and was known only to the applicant. In fact, during inquiry, log in data was obtained with the cooperation of the applicant.
7 OA 923/20185.2 Issues raised about the legality of the software used by the Institution has also been satisfactorily addressed by the respondent in their reply. Significantly, the applicant has repeatedly raised technical objections about the legality of the computer and the software used, without once clearly stating that he did not enter the data in question. In all his representations and averments, it is noticed that he has stopped short of unambiguously declaring that he did not enter the marks in the SIS. This casts serious doubts on the culpability of the applicant in the alleged misdemeanor. Similarly, the charges of mismatch between the total marks indicated on the top sheet of the answer sheet and the sum of marks awarded to individual questions have also not been specifically refuted by the applicant.
5.3 It is settled law that the departmental proceedings in a disciplinary case are based on the principle of preponderance of probability. Evidences used to oo tested arrive at a conclusion in such cases need not always be treated against the principle of strict proof.
5.4 Hon'ble Supreme Court has laid down clear guidelines regarding circumstances which can warrant interference in disciplinary matters by the Courts. Order of the Hon'ble Supreme Court in State of Karnataka & Anr. vs, Umesh in Civil Appeal Nos. 1763-1764 of 2022 is as follows :-
"17. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct ts based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; aid (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct."
5.5 In the instant case, the applicant was given the opportunity to defend himself at every stage of the proceeding. The Disciplinary Authority and the