Central Administrative Tribunal - Jabalpur
Ashok Kumar Verma vs Kendriya Vidyalaya Sanghthan on 15 February, 2019
1 OA No.200/00741/2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00741/2015
Jabalpur, this Friday the 15th day of February, 2019
HON'BLE MR. NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
Ashok Kumar Verma (Ex-LDC, KVS), S/o Late Shri P.N. Verma,
Age: 39 years, R/o 1614/1, Yadav Colony, Jabalpur - 482002
(M.P.) Email: [email protected], Mobile : 9691896960
-Applicant
(Applicant in person)
Versus
1. Kendriya Vidyalaya Sangathan represented by its
Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional
Area, SJS Marg, New Delhi - 110602.
2. Additional Commissioner (Admn.), Kendriya Vidyalaya
Sangathan, 18, Institutional Area, SJS Marg, New Delhi - 110602.
3. Joint Commissioner (Admn.) Kendriya Vidyalaya Sangathan,
18, Institutional Area, SJS Marg, New Delhi - 110602.
4. Joint Commissioner (Acad.), Kendriya Vidyalaya Sanganthan,
18, Institutional Area, SJS Marg, New Delhi - 110602.
5. Deputy Commissioner, Kendriya Vidyalaya Sangathan,
Regional Office, GCF Estate, Jabalpur - 482011
- Respondents
(By Advocate - Smt. Sheetal Dubey, proxy counsel of Shri
Pankaj Dubey)
(Date of reserving order : 19.09.2018)
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2 OA No.200/00741/2015
ORDER
By Ramesh Singh Thakur, JM.
This Original Application has been filed against the memorandums dated 31.12.2013 (Annexure A-8), 07.03.2014 (Annexure A-16) and order dated 09.01.2015 (Annexure A-18).
2. The applicant has, sought for the following reliefs:
"8. Relief sought:-
(i) declare the proceeding initiated against the applicant vide Annexure A/8 under Article 81(d) of Education Code for KVs as arbitrary, illegal, non-est, ultra-vires, unsustainable and also to quash and set-aside the impugned orders :-
a) dated 31/12/2013 (Annexure A/8),
b) dated 07/03/2014 (Annexure A/16),
c) dated 09/01/2015 (Annexure A/18);
(ii) treat the period w.e.f. 22/02/2012 till joining of the applicant at his headquarter as spent on duty with all consequential benefits as if the applicant had never been removed from service w.e.f. 21/02/2012 (this Hon'ble Tribunal has already declared the applicant to be treated as on duty w.e.f. 21/11/2011 till 21/02/2012 in OA 848/2013) -
(Annexure -A/18);
(iii) direct the respondents to allow the applicant to join the duty forthwith at his headquarter i.e. at KV OFK Jabalpur as per the commanding order of this Hon'ble Tribunal in OA 848/13 wherein the applicant has already been declared as deemed reinstated in service w.e.f. 21/11/2011 itself and also in terms of the statutory proviso of initial suspension order dtd. 23/08/2011;
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(iv) grant any other relief/s in favour of applicant, which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case to the applicant; and
(v) award an exemplary and heavy cost of litigations to the respondents."
3. Brief facts of the case, as narrated in the Original Application are that the applicant, while working on the post of Lower Division Clerk with the respondent department, was suspended on 23.08.2011 (Annexure A-1). The suspension of the applicant was reviewed vide order dated 31.01.2012 for further 90 days. On 21.02.2012 (Annexure A-3), the suspension of the applicant was revoked by the Disciplinary Authority with direction to report for duty to the Principal, Kendriya Vidyalaya Dhamtari immediately. The applicant submitted an appeal dated 23.02.2012 (Annexure A-4) against the order dated 21.02.2012 with the prayer to allow him to join the duties at Regional Headquarter, Jabalpur. However, the same was rejected vide memorandum dated 28.02.2012 (Annexure A-5).
4. Aggrieved by rejection of his appeal, the applicant preferred an Original Application No.330/2012, which was dismissed on 01.11.2013. In the meantime, the applicant filed another Original Application No.848/2013 challenging the extension of suspension Page 3 of 14 4 OA No.200/00741/2015 period being illegal and arbitrary. The O.A was disposed of on 29.09.2014. However, on Review Applications Nos.200/00100/14 and 200/00001/15 preferred by the applicant as well as respondents, the orders dated 29.09.2014 were recalled on 22.07.2015 and the Original Application was party allowed. Meanwhile, the applicant was served with a show cause notice dated 31.12.2013 under sub-clause (3) of clause (d) of Article 81 of the Education Code regarding provisional loss of his lien and deemed removal from service for his absence. Thereafter, the applicant was removed from service with retrospective effect from 21.02.2012 vide order dated 07.03.2014 (Annexure A-14). His appeal against the order of removal, has also been dismissed vide order dated 09.01.2015 (Annexure A-18). Hence, he has filed this Original Application.
5. The applicant has challenged the impugned orders mainly on the ground that the proceeding under Article-81(d) was initiated against the applicant for not reporting at KV Dhamtari consequent upon his revocation of suspension and the issue of revocation of suspension was under judicial consideration before this Tribunal in OA No.848/2013. Therefore, the respondents could not have taken any further action in the matter. It has been submitted that once the Page 4 of 14 5 OA No.200/00741/2015 matter is seized by this Tribunal, then by virtue of Section 19(4) of the Administrative Tribunals Act, 1985, the authorities are precluded from passing any order in that subject matter and even if any proceedings pending with respondents, it will stand abated.
6. It has been further submitted by the applicant that against the orders dated 01.11.2013 of this Tribunal in OA No.330/2012, wherein he has challenged the legality and propriety of the order dated 21.02.2012 (Annexure A-3), the applicant has preferred Writ Petition No.689/2014 before the Hon'ble High Court of Madhya Pradesh at Jabalpur and the same is pending for adjudication. Therefore, the issue of transfer (on posting) of the applicant has not yet been finalised.
7. The respondents have filed their reply. It has been submitted that the applicant, while working as LDC in Kendriya Vidyalaya, Ordnance Factory, Khamaria, Jabalpur, misbehaved with the girls student and created nuisance in inebriated condition. Therefore, he was placed under suspension vide order dated 23.08.2011. The suspension of the applicant was revoked vide office order dated 21.02.2012 by posting the applicant to KV, Dhamtari. However, he never reported to join duty. The Original Application No.330/2012 filed by the applicant against the order dated 21.02.2012 was Page 5 of 14 6 OA No.200/00741/2015 dismissed by this Tribunal on 01.11.2013. Thereafter, the applicant was given one more opportunity vide letter dated 12.11.2013 to report to the Principal, KV Dhamtari for joining duty but even after providing ample opportunity, he did not report duty at KV, Dhamtari. Therefore, a show cause notice under Article 81(d) of the Education Code was issued to the applicant vide Memo dated 31.12.2013 for provisional loss of lien. Since, the applicant had neither preferred any representation for not complying the orders nor reported for joining duty where he was posted after revocation of suspension, therefore, after considering all the facts and circumstances, the order dated 07.03.2014 was issued for loss of lien and the applicant was removed from KVS service.
8. It has been further submitted by the respondents that the order dated 22.07.2015 passed by this Tribunal in OA No.848/2013, were only in regard to applicant's deemed reinstatement and to be treated on duty w.e.f. 21.11.2011 to 21.02.2012, i.e. the period of extension of his suspension. However, the orders regarding transfer/posting of the applicant to KV Dhamtari after revocation of suspension were remain unchanged. The applicant had himself not reported for duty deliberately after revocation of suspension on one pretext or the Page 6 of 14 7 OA No.200/00741/2015 other. Therefore, in terms of sub clause (1) of clause (d) of Article 81 of the Education Code, he was deemed to have voluntarily abandoned his service and thereby provisionally lost lien on his post and, therefore, has rightly been removed from service.
9. The applicant has filed rejoinder to the reply filed by the respondents. It has been submitted that this Tribunal in OA No.848/2013 had clearly stated that the order of revocation of suspension was illegal and it was not issued as per the statutory provisions of CCS (CCA) Rules, 1965. Therefore, the action taken under Article 81(d) of the Education Code was unjust and improper. Further, all the impugned orders are ultra-vires and illegal, as they have no legal sanctity due to the inherent lack of jurisdiction, as the original appointing authority of the applicant is respondent No.2.
10. The respondents have also filed their additional reply and refuted the averments made in the rejoinder. It has been stated the previously before implementation/notification of common cadre of KVS HQ/RO & KVs, the Joint Commission was the appointing authority in case of Group B & C employees in respect of staff recruited in Regional offices. But, as per KVS (HQ) letter dated 17.06.2010 (Annexure R-2), the Assistant Commissioner is the Page 7 of 14 8 OA No.200/00741/2015 competent appointing/disciplinary authority in respect of Group B & C employees recruited in Regional offices and Kendriya Vidyalaya and, thus, action initiated under Article 81(d) of the Education Code by the Deputy Commissioner is just and proper.
11. The applicant has filed his additional rejoinder to the additional reply filed by the respondents and has reiterated the averments made in the O.A as well as in his rejoinder.
12. We have heard the learned counsel for the parties and gone through the pleadings available on record.
13. The applicant has challenged the issuance of show cause notice dated 31.12.2013 (Annexure A-8); the order of his removal dated 07.03.2014 (Annexure A-16): and the order dated 09.01.2015 (Annexure A-18) rejecting the appeal against the order of removal. It is the case of the applicant that since the issue of revocation of suspension was pending before this Tribunal in OA No.848/2013, therefore, the respondents should not have taken any further action in the matter as per the provisions of Section 19(4) of the Administrative Tribunals Act, 1985. Further, the orders passed by this Tribunal dated 01.11.2013 in Original Application No.330/2012, have been challenged by the applicant in Writ Page 8 of 14 9 OA No.200/00741/2015 Petition No.689/2014. Therefore, the issue of transfer (on posting) is yet to be finalised. The applicant has also raised the question of competency of the authority in issuing the impugned orders.
14. The applicant has placed reliance on a decision of this Tribunal in Original Application No.648 of 2002 dated 06.05.2003 (Dr. R.K. Shastri vs. Union of India & Ors.), wherein the issue regarding issuance of transfer order on revocation of suspension was dealt with by this Tribunal.
15. It is pertinent to mention that the applicant has challenged the order dated 21.02.2012, so far as it relates to his transfer from Jabalpur to Dhamtari, by way of filing OA No.330/2012. This Tribunal while dismissing the O.A vide order dated 01.11.2013, had observed as under:
"10. In the case of Dr. RK Shastri (supra) the revocation of suspension was conditional, subject to the employee therein joining at KV Karimganj. Further, this order was passed by the appellate authority exercising his powers under Rule 23 of the 1965 Rules. Therefore it was held by Hon'ble High Court that :- "While exercising the Appellate power under Rule 23 read with Rule 27 (1), the Appellate authority can either confirm the suspension or revoke the suspension. Therefore the second Respondent, while passing the order dated 6/8-7-2002, could not have transferred the employee or make the revocation of suspension subject to the employee reporting at the place of transfer. The order of the Appellate Authority to the extent it subjects the revocation of Page 9 of 14 10 OA No.200/00741/2015 suspension conditional to reporting to duty at KV, Karimganj is therefore illegal and inoperative."
As against this, in the present case, the suspension order has been revoked by the disciplinary authority vide the order dated 21.02.2012 and there is no such condition that the suspension is revoked subject to the applicant joining duty at KV Dhamtari. The respondent No.4, in the impugned order, has clubbed two orders, that is revoking the suspension order, and thereafter, directing him to report for duty at KV Dhamtari. In fact, the applicant himself has prayed in the Original Application for posting him at any of the other vacant posts at Jabalpur. Thus, he has no objection to transfer as such, except for the place of posting, which he wants to be at any of the five vacant posts at Jabalpur. The respondents have given detailed reasons in their reply as to why he cannot be posted at Jabalpur. The behavior of applicant in coming to KV Khamariya at 11.35 PM in intoxicated condition and misbehaving and abusing the girl students and their escort teachers is deplorable, and cannot be accepted in any educational institution. The disciplinary proceedings against him in this matter are already going on. The applicant was also asked to furnish surety of Rs.5000/- and affidavit before SDM Ranjhi, Jabalpur for maintaining good behavior. Besides, an FIR was also lodged against him in this case. The applicant has already been found prima- facie guilty in the fact finding inquiry conducted on the orders of Principal, KV, OFK, Jabalpur. In these circumstances, the respondents cannot be faulted in not posting back the applicant at Jabalpur after revoking his suspension. The applicant has all India Transfer Liability, and therefore, he can be posted anywhere in India. The issue in the case of Dr. RK Shastri (supra), was regarding the revocation of suspension being conditional, subject to the Page 10 of 14 11 OA No.200/00741/2015 employee therein joining at KV Karimganj and the same has already been considered by this Tribunal, whereas, in the instant case, the applicant is challenging the proceedings initiated under Article 81(d) of the Education Code. Therefore, the case of Dr. RK. Shastri, relied upon by the applicant, has no relevance to the facts and circumstances of the present case.
16. So far as contention of the applicant that the order of revocation of suspension has been declared as illegal by this Tribunal in OA No.848/2013 and the action taken under Article 81(d) of the Education Code is unjust and improper, we find that though the orders dated 31.01.2012 (extension of suspension), 21.02.2012 (in regard to suspension only) were quashed, however, the order dated 21.02.2012, so far as it relates to transfer of the applicant to KV Dhamatari remained unchanged due to pendency of Writ Petition No.689/2014. Since, no stay was granted by the Hon'ble High Court of Madhya Pradesh in Writ Petition No.689/2014, therefore, the action of the respondents in taking action under Article 81(d) of the Education Code, cannot said to be illegal, as admittedly, the applicant had not joined at KV Dhamtari even after dismissal of OA No.330/2012.
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17. We also find from the order dated 22.07.2015 passed in Original Application No.848/2013 that the application of the applicant for granting interim relief by staying the operation of order dated 21.12.2013 by which a show cause notice was issued to the applicant under Article 81(d) of the Education Code was dismissed by finding it an altogether relief. Therefore, the cause of action and the grievances raised by the applicant in OA No.848/2013 and in the instant case, are not interlinked with each other and hence there is no merit in the contention of the applicant that every proceeding in relation to the subject matter of the O.A pending immediately before such admission shall abate and no appeal or representation in relation to such matter thereafter be entertained as per Section 19 (4) of the Administrative Tribunal Act, 1985.
18. Article 81(d) of the Education Code deals with Voluntary Abandonment of Service of an employee who remains absence without sanctioned leave or beyond the period of leave originally granted or subsequently extended. The relevant extract of Article 81(d) of the Education Code is extracted as under:
"81(d) : Voluntary Abandonment of Service -Page 12 of 14 13 OA No.200/00741/2015
The KVS vide letter F.No. 11-12-/2000-KVS(Vig.) dated 4.9.2002 has conveyed the following decision on :
(1) If an employee has been absent/remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall provisionally lost his lien on his post unless :
(a) he returns within fifteen calendar days of the commencement of the absence or the expiry of leave originally granted or subsequently extended, as the case may be, and
(b) satisfies the appointing authority that his absence or his inability to return on the expiry of the leave as the case may be was for reasons beyond his control. Their employee not reporting for duty within fifteen calendar days and satisfactorily explaining the reasons for such absence as aforesaid shall be deemed to have voluntarily abandoned his service and would thereby provisionally lose lien on his post.
xxx xxx xxx xxx Since, the applicant had not reported for duty for about two years from the date of posting to KV Dhamtari after revocation of suspension and after his transfer/posting at KV Dhamtari even after repeated reminders and no satisfactory reasons have been assigned by him in not joining at KV Dhamtari, therefore, the respondents have rightly taken action under Article 81(d) of the Education Code by voluntarily abandoning his service.
19. Regarding the applicant's allegation of lack of jurisdiction of the authorities in issuing the impugned punishment orders, not Page 13 of 14 14 OA No.200/00741/2015 being his original appointing authority, we find that vide Office Memorandum dated 17.06.2010 (Annexure R-2), amendment in Schedule II of KVS (Appointment, Promotion Seniority etc.) Rules, 1971, have been incorporated, whereby the Assistant Commissioner (re-designated Deputy Commissioner), is the competent authority of the applicant for appointment, promotion and seniority etc. Therefore, the impugned order dated 31.12.2013, i.e. show cause notice to the applicant and the order dated 07.03.2014 removing the applicant from service, were issued by the Deputy Commissioner, being the competent authority of the applicant to do so and hence, there is no question of inherent lack of jurisdiction, as alleged by the applicant.
20. In the result, we do not find any illegality in the impugned orders dated 31.12.2013, 07.03.2014 and 09.01.2015 passed by the respondents and, therefore, the O.A is dismissed, being without any merit. No order as to costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
am/-
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