Central Administrative Tribunal - Delhi
Smt. Rita Dutta vs Union Of India on 17 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.05/2013 Reserved On:25.11.2013 Pronounced on:17.01.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Smt. Rita Dutta W/o Shri Suresh Dutta R/o House No.296, SITE-1, Vikas Puri, New Delhi. .Applicant By Advocate: Shri M.L. Chawla. Versus 1. Union of India Through Secretary, Ministry of HRD, New Delhi. 2. Commissioner, KVS, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi. 3. Assistant Commissioner KVS (Delhi Region) 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi. ..Respondents By Advocate: Shri K.M. Singh. ORDER
Honble Mr. G. George Paracken, Member (J) The Applicant in this Original Application has challenged (i) the Annexure A-3 Memorandum No.F.21(215)/RD/2008/KVS/DR/ 24504-05 dated 12.05.2008 issued to her by the Respondent No.3, namely, Dr. Sachi Kant, Assistant Commissioner proposing to hold an inquiry against her under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (ii) the Annexure A-2 Enquiry report dated 11.07.2011 furnished to her by the Respondent No.3 vide its Memorandum No.(662)/21(RD)/2007/KVS(DR)/1961-63 dated Nil September, 2011, (iii) the Annexure A-1 order No.(662)/21(RD)/2007/KVS(DR)/3597-3601 dated 12.03.2012 of the Disciplinary Authority, namely, the Deputy Commissioner imposing the major penalty of compulsory retirement from service with immediate effect and (iv) the Annexure A-5 transfer order No.12011/KVS(ESTT.III) dated 03.06.2011.
2. The charges against the Applicant were as under:-
Article-I Smt. Rita Dutta, while working as Upper Division Clerk in Kendriya Vidyalaya, AFS Arjangarh, during the year 2007 failed to discharge her duties in as much as (i) she did not write and maintain the cash books of VVN and School Funds account properly as there are more cuttings/over writings in the cash book (ii) she did not prepare the transfer certificates carefully as out of 18 T.C. prepared by her 06 T.C. had to be cancelled due to the mistakes committed by her.
Article-II That the said Smt. Rita Dutta, while working in the aforesaid capacity in the aforesaid Vidyalaya during the year 2007 was in habit of using unparliamentary and abusive language towards Teachers, Principals & visitors. Smt. Rita Dutta did not maintain decorum and used unparliamentary language on 10.08.2007, the date when fact finding inquiry was conducted by Shri Sanjay Kumar, AAO, KVS, RO, Delhi in KV AFS Arjungarh which clearly indicates that she acted in a manner unbecoming of a KVS employee and failed to maintain cordial relations with her superiors and colleagues.
3. On denial of the charge, an enquiry was held by the Enquiry Officer and submitted the impugned report on 11.07.2011 with the findings that both the Articles of Charges have been conclusively proved. The operative part of the said report reads as under:-
Article I She in her written statement of defence states that she has been charge sheeted for committing mistakes which are violation of rule 3 (i), (ii), (iii), of CCS (Conduct) rules 1964. She states that error in writing or maintain the cash book does not involve integrity and that there was no laxity in the matter of devotion of duty.
The CO in her brief has accepted to have made mistakes or over writings in the cash book of school Fund. But she also mentioned that these over writings in cash book and prepartations of TCs were the nature of fait accompli and were not of that magnitude which calls for charge sheet under Rule 14 of CCS(CCA) Rules, 1965. She has also mentioned that the comments of the audit party were advisory in nature. She in her brief has requested the authorities to pardon her and take a lenient view and pardon her.
In the Audit report DE-2 which was conducted in April 2007, the audit commented that mistake/erasing on cash book should be avoided against which the Principal has assured to the audit through annotation that it will be noted for future. This assurance was well known to CO because she is supposed to handle the audit report and its reply.
My conclusion on article-1 is that the factual position of the chare that Mrs. Rita Dutta did not maintain the cash book of VVN & School Fund properly, in spite of repeated oral and written advise of the Principal, the cash book contain many cutting and over writings in a number of pages of cash book is established. Pages 39 to 43 are cancelled without attestation of the DDO. It is also established that 06 of the 18 TCs prepared by Mrs. Rita Dutta had to be cancelled due to mistakes committed by the CO. She has admitted to the above mistakes and over writings. Repeated mistakes in TC will definitely a harassment to the parents in getting admission in other institution, which amounts to careless towards duties and failure to maintain devotion to duty. Repeated corrections, mistakes, over writing in cash book on the part of Charged Officer amounts to failure to maintain devotion to duty & absolute integrity. Non-writing of cash book on day to basis and non-improvement in shortcomings pointed out by her superiors in writing, amounts to unbecoming of KVS employee. Thus the article of charge leveled at Article-I have been conclusively proved.
Article-II The second charge is use of unparliamentry and abusive language by the Charged Officer towards Principal, Teachers and Visitors.
The prosecution had submitted statements of seven staff members and a joint statement of staff members and seven witnesses. The statement of Smt. S.P.Advani, Ex-PET could not be verified as the Principal, K.V, Arjangarh informed that she had expired after her retirement on superannuation.
The Presenting Officer in his written brief has stated that the Ex-Principal Shri K.C.Sharma, who had now retired from service has given his statement as per PW-1, which has been recorded on daily proceedings sheet page-1 to 10. He clearly stated in his deposition & recorded that she had definitely used foul language against him. He had also stated that she used foul ad abusive language when the teachers were going to the office to deposit fees or for any other official work in the Office. This abusive languages was also used with the parents in the Office. With him she has used abusive language ones or twice. But in this case the second witness PW-2 Smt. Veena Rani, PRT verified her statements and stated during the cross examination that whatever she had written in para-3 of her complaint is correct. She had used unparliamentry language against her. The third witness Smt. Sangeeta Bhardwaj, PW-3 also verified her statement and stated that she had written in Hindi ______________________________ The fourth prosecution witness Smt. Nisha Peer, PRT also verified her statement and stated during cross that it is true that Smt. Rita Dutta without any reason misbehaved. She had clearly stated that she was walking in corridor in old campus in front of Principal Room on 10.08.2007 and used unparliamentry language. The fifth prosecution witness Smt. Parveen Virk also verified her statement dated 10.08.07 and joint statement dated 10.08.07 and also gave the reply of cross made by D.A., she stand at her statements. The sixth prosecution witness Shri Desh Raj, LDC and Seventh Shri Ram Bhagat also verified their statements and also joint Statements and stand by the same. They have given the true picture of episode held on 10.08.07 in the cross.
The Charged Officer in defense of 2nd charge submitted a list of 06 defense witnesses whose evidence and cross examination has been recorded on pages 21 to 29 of the daily proceedings sheets. The defense had also submitted a written statement of Defense dated 27.01.2011. Charged Officer in her defense of article II states that the Principal in his memo dated 3-5-07(DE-3/1), states that majority of staff members complained that she was quarrelling/abusing staff members when they go to office for depositing fees etc, while the Principal has not provided any name. She has also mentioned that out of 04 memos in DE-3, ony DE-3/1 has mentioned misbehavior with staff members that to in sweeping sense without mentioning any names of the staff. In her defense she says, 21-6-2007 (DE-4), Principal has reported to AC, enclosing only two complaints made by Mrs Veena Rani, PRT and Smt. Sangeeta Bhardwaj dated 3-5-07 and 13-05-07. She says that the complaints made by them were not inquired into and attached with DE-4. The other four witnesses did not report to the Principal in writing earlier to joint statement given on 10-8-07.
The CO has also pointed out that vide DE-4, there is a reference of Postman and his complaint was to the AC as is evident from enclosures attached. The Postman being an independent witness should have been inquired into by the Prosecution. He only confined his inquiry to employees of the Vidyalaya who were direct subordinates of the complainant i.e., Principal and did not inquire into independent witnesses like Postman and parents, as given in the chargesheet.
The CO had produced six witnesses in her defense and their statements are recovered on pages 21 to 27 on 27-1-11 and these six witnesses have stated that CO never misbehaved with them.
In response to Additional Prosecution documents A-1, 07 prosecution witness categorically stated in their separate written statement SE-5, SE-6, SE-7, SE-8, SE-9, SE-10, SE-11 about the general behavior of CO with them. Further the testimony of D-1 to D-7 during the inquiry proceedings establish that CO has been habitual in using abusive, uncalled for, unparliamentary language with them and other staff, parents when they enter the Vidyalaya office in connection with routine official work. The utterance of CO on 10.8.2007 duly recorded by PW-2 and contents of A-3 to A-5 duly verified by 05 staff members/PWs is definitely a reflection of the general behavior of CO with the staff etc. Refusal of CO to give her Written statement to Shri Sanjay Kumar, AAO on the complaint against her as narrated at A-6-A-7 duly verified by 07 staff members out of which 05 PWs also establish her misconduct of unbecoming of KVS employee.
The prosecution to substantiate the charge has relied on the statement of Shri K.C.Sharma, Ex Principal, as per PW-1, which has been recorded on daily proceedings sheet page-1 to 10. He had also stated that she used foul and abusive language against him. Regarding use of unparliamentry and abusive language towards teachers, the SE-11 and PW-1 to 7, and on joint statement dated 10-08-2007, by staff members, SE-12. All seven witnesses produced by the prosecution have verified their statements and joint statement and had during their witnesses stated that Mrs. Rita Dutta was walking in the corridor of old campus in front of Principals Room on 10-08-2007 and used unparliamentry language. The CO has also accepted to some alteration with prosecution witness but does not accept the charge of using unparliamentry language against any of them.
My conclusion regarding Article-II, which as per chargesheet states Mrs Rita Dutta was in a habit of using unparliamentary and abusive language towards Principals, teachers and visitors. The statement of imputation, states of a incident of 10-08-07, the date when fact finding inquiry was conducted by Sri Sanjay Kumar, AAO, KVS(RO) Delhi in K.V. Arjangarh, on which Mrs. Rita Dutta did not maintain decorum and used unparliamentary language.
4. Vide letter dated NIL 09/2011 a copy of the aforesaid report was furnished to the Applicant to submit her representation, if any, against the same within 15 days. Accordingly, she submitted her representation dated 31.10.2011. According to the Applicant, a perusal of the contents of aforesaid report would speak volumes. It was written as a tailor made one and the bias of the Enquiry Officer against the appellant is writ large. The Enquiry Officer has failed to consider the substance and contents of defence witnesses which are vital component for the safety and defence of the CO. In respect of the allegations made in Article-I, she had submitted that (i) it did not in any way interfered with the normal maintenance of the cash book and few cuttings & over writings could have been avoided if the work relating to writing of cash book were the VVN Cash Book efficiently, (ii) the main aim and object of the administration was to involve her in the work about which she has never been exposed earlier during her entire service of fifteen years and (iii) writing of cash book is a technical job which required sufficient time to learn and she was in the process of learning it. As regards Article-II of the charge, she has stated that (i) while reporting the matter, the Principal did not mention names of any staff with whom she committed the alleged misconduct and, therefore, such sweeping statement should have been avoided, (ii) the Enquiry Officer also did not give importance to the said vital lapse, (iii) on 21.6.2007, the Principal reported the matter to the Asstt. Commissioner enclosing therewith the statements of Mrs. Veena Rani dated 3.5.2007 & Smt. Sangeeta Bhardwaj dated 13.5.2007 but both of them gave entirely different statements before PEO on 10.8.2007 and the Enquiry Officer failed to examine the aforesaid duality. In any case, there was also no provocation to have their statements afresh on 10.8.2007, (iv) the six other staff members were plotting against her and all of them were the direct subordinates of the Principal, (v) there was deep routed conspiracy planned against her by the administration through the Principal, PEO and the Ex-staff members and the same was evident from the fact that the collective Annexure A-3 representation which was not part of the listed documents was considered by the Enquiry Officer, (vi) the statement of Shri Des Raj, LDC that he was suffering at the hands of the Applicant was a concocted one as he never reported the matter to the Principal up to 10.8.2007 and, therefore, the said witness was created only on that date, (vii) as regards her work and conduct was concerned, there was nothing against her as she was in AC office under the direct control of Disciplinary Authority during the period from 29.4.2010 to 6.6.2011 and she earned one ACR which did not contain any adverse remarks, (viii) even the Enquiry Officer mentioned in her report that all the witnesses stood by their statement but none of them ever reported the matter to the Principal prior to 10.8.2007 and (ix) the IO did not give weightage to the statements given by six defence witnesses who confirmed that they were not having any problem with regard to her behavior.
5. However, the Disciplinary Authority, vide its order dated 12.03.2012, after considering the aforesaid report of the Enquiry Officer as well as the representation of the Applicant dated 31.10.2011, held that the charges have been proved convincingly and the applicant did not bring forward any new material evidences to its notice to negate the findings of the Inquiry Authority. Accordingly, the Disciplinary Authority has imposed the penalty of compulsory retirement upon the Applicant with immediate effect. The said report reads as under:-
Maintenance of Cash Book is the allocated duty of UDC posted in KVs. Being a senior UDC, CO was duty bound to maintain Cash Book with utmost care and accuracy whereas CO miserably failed to as per charge which was proved during the course of inquiry by the IO. The charge of her carelessness, failure to maintain devotion to duty and unbecoming of a Government servant has further established as out of 18 Transfer Certificates of students prepared by CO, 06 TCs have to be cancelled by the Principal which was also conclusively proved during the course of inquiry as per findings of the IO.
The charge that Smt. Dutta was habitual in using unparliamentary and abusive language towards Principal, teachers, failure to maintain decorum, using unparliamentary language towards other staff members on 10.8.2007 on the date of fact finding inquiry by Shri Sanjay Kumar, AAO, KVS, RO, Delhi CO was also conclusively proved during the course of inquiry conducted by the IO based on the prosecution documents and testimony of prosecution witness during the course of inquiry.
The statement of Mrs. Veena Rani, PRT & Sangeeta Bhardwaj dated 10.8.2007 pertains to reply to queries raised by the Preliminary Inquiry Officer on the complaint filed by the Principal, KV, Arjangarh about the alleged indecent and objectionable behavior of Smt. Dutta whereas the complaint dated 3.5.2007 of Smt. Veena Rani, PRT and complaint dated 13.5.2007 Sangeeta Bhardwaj pertains to specific complaint filed by them to the Principal, KV, Arjangarh against Smt. Dutta.
No organization can function efficiently, if it tolerates employees who indulge in use of abusive language towards her superiors, colleagues and visitors etc. The Apex Court has held in Mahindra Ltd. Vs. N.B. Narawade [(2005), 3 SCC 134] that dismissal of a workman for use of abusive language cannot be held to be disproportionate. In the instant cases, the charge against Smt. Rita Dutta go well beyond this. On perusal of the material evidences on records, facts of the case and submissions made by the Charged Officer in her representation dated 31.10.2011 the undersigned came to a conclusion that the charge leveled at Article-I & II have been convincingly proved and Charged Officer has not brought forward any new material evidences to the notice of the Disciplinary Authority which may negate the findings of the Inquiry Officer.
Smt. Rita Dutta, UDC on transfer to KV Aligarh did not report for duty till date, as confirmed from the office of the Deputy Commissioner, KVS, RO Lucknow. After taking a lenient view is totality of the case, the undersigned being the Disciplinary Authority ordered that a penalty of compulsory retirement will commensurate with the proven misconduct on her part. Accordingly, a major penalty of compulsory retirement is imposed upon Smt. Rita Dutta, UDC accordingly with immediate effect.
6. According to the Applicants, the Disciplinary Authority failed to apply his mind to the record of the proceedings and accepted the report of the IO without application of independent mind. Hence the order passed on the basis of the said tailor made report is nothing but a colourable exercise of power affecting her career adversely. She has also submitted that during the period of enquiry, she suffered acute pain on the left knee causing a disability to move and as such she was admitted in CGHS Ayurveda Hospital on 03.05.2011 and remained as an indoor patient till 28.05.2011. On discharge on 28.05.2011 (Saturday), she resumed her duty on 30.05.2011 (Monday) and performed her duty up to 05.06.2011 but on 06.06.2011 she was transferred to Aligarh, KV. Because of ill health to join KV, Aligarh, she remained confined to bed from 06.06.2011 up to 12.10.2011. Once again she was hospitalized in CGHS Ayurveda Hospital, Lodi Road but discharged only on 27.10.2011 with the advice to get herself examined in Allopathic Hospital for further treatment. Thereafter, she consulted Orthopedic Surgeon in CGHS Dispensary No.61 who referred her case to RML Hospital. She had also made a request for medical advance of Rs.2,36,500/- for knee replacement surgery which was never sanctioned. At Aligarh where she was transferred, the said medical facility was not available. Suddenly she was imposed with the penalty of compulsory retirement from service on account of the enquiry held w.e.f. 28.06.2010 to 03.02.2011.
7. The Applicant made her appeal dated 23.04.2012 against the aforesaid order of the disciplinary authority to the Commissioner, Kendriya Vidyalaya Sangathan (KVS for short). However, the Respondents, vide their letter dated 03.05.2012, informed her that she being a UDC, her Appellate Authority was the Deputy Commissioner (Administration) re-designated as Joint Director (Administration). She was, therefore, advised to prefer her appeal to the said authority. Therefore, the applicant preferred an appeal dated 07.05.2012 to the Joint Commissioner, KVS. As the said appeal was not disposed of by the Appellate Authority, the Applicant has filed this OA before this Tribunal on 19.12.2012 and notice was issued to the respondents on 02.01.2013.
8. According to the Applicant, the aforesaid disciplinary proceedings and the transfer order were not isolated instances. Earlier she was removed from service for the alleged unauthorized absence from 28.08.2000 to 19.07.2001. Then she had approached this Tribunal and this Tribunal vide its order dated 10.08.2006 directed the Respondents to reinstate her in service. The Respondents challenged the aforesaid orders before the Honble High Court of Delhi vide Writ Petition ( C) No.15252/2006 and it was disposed of vide order dated 19.12.2006 directing the Respondents to reinstate her in service with all consequential benefits including 40% of back wages. The High Court has also directed the Respondents to post her within Delhi Region. However, the Respondents did not grant her the leave and the increments accrued to her after August, 2000. She was allowed to serve in Delhi Region only for just 7 months and 10 days but she was placed under suspension from 13.08.2007 to 02/03.06.2008 and on revocation she was posted to INS Valsura, Ahmedabad Region. Applicant challenged the aforesaid order again vide OA 1299/2008 and it was also disposed of on 23.04.2009 with the direction to the Respondents to reconsider her case. As the Respondent rejected her case again, she approached this Tribunal once again vide OA No.642/2010 and vide order dated 25.02.2010 this Tribunal quashed and set aside the transfer order.
9. Thereafter, she joined the Regional Office, KVS, Delhi on 30.04.2010 but she was allowed to serve there only for 13 months. Thereafter, she was transferred to KV, Aligarh, Lucknow Region, despite the fact that she was hospitalized twice and she was confined to bed. According to her, the said transfer was intended to harass and torture her. She has also stated that the fact that she was suffering from acute arthritis and she was under the treatment of Dr.R.M.L Hospital was in the knowledge of the respondents but in spite of that, in a mala fide manner, she was transferred even while the disciplinary proceedings were pending against her. In this regard, the learned counsel for the Applicant has relied upon the Full Bench judgment of this Tribunal in Shri Kamlesh Trivedi Vs. Indian Council of Agricultural Research and Another ATR 1988 (2) CAT 116 wherein it has been held as under:-
In view of the above discussion, we hold that any order of transfer must be in public interest and in the exigency of service on administrative grounds. It must not be in colourable or mala fide exercise of power. It should not be arbitrary. It must be made by a competent authority in accordance with the rules and the instructions, if any, governing the transfer policy. But how for a transfer policy is mandatory, we express no opinion in this case. That must depend on the wording intendment of the instructions embodying the transfer policy. The transfer itself must be ordered by the competent authority in bona fide exercise of power. It should not be a fixed transfer or for settling scores. However, merely because transfer is ordered on the employee on complaints or after an inquiry into the guilt of the employee, it cannot be said to be by way of punishment. The principle that justice should not only be done but appear to be done is not contravened if transfer is made without any further inquiry after a penalty is imposed in a proper disciplinary proceedings. It does not amount to double jeopardy.
She has relied upon the judgment of the Apex Court in P. Puspakaran Vs. Chairman, Coir Board (Kerala) 1979 (1) SLR 309. The relevant part of the said order reads as under:-
A transfer can uproot a family, cause irreparable harm to an employee and drive him into desperation. It is on account of this, that transfers when affected by way of punishment, though on the face of it may bear the insignia of innocence, are quashed by Courts, I am not satisfied with the explanation given by the respondents.
Further, she has also relied upon a judgment of the Apex Court in B. Varadha Rao v. State of Karnataka & Ors. (1986) 4 SCC 131 wherein it was held as under:-
5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public Interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied, to the disadvantage of the concerned Government servant.
XXX XXX XXX It was no doubt true that the Government has power to transfer its employees employed in a transferable post but this power has to be exercised bona fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down.
10. The Respondents in their reply have submitted that the Principal KV, Arjangarh, vide letter dated 21.06.2007, submitted a report to the higher authorities about the negligent and casual attitude of the Applicant towards her duty and her conduct of abusing and uttering foul language to the Principal, other staff members and parents and demanded action against her. The Principal has also requested for her transfer duly recommended by the Chairman, VMC. The Assistant Commissioner, KVS, RO, Delhi deputed Shri Sanjay Kumar, AAO for conducting a fact finding inquiry into the allegation vide order dated 27.06.2007. Shri Sanjay Kumar, AAO visited the KV, Arjangarh on 10.08.2007 and conducted a fact finding inquiry and submitted his report on 13.08.2007 along with the statements of staff members. On the basis of the said report, the Disciplinary Authority placed the Applicant under suspension vide order dated 13.08.2007. Thereafter, the Disciplinary Authority, vide order dated 26.05.2010, appointed Smt. Neera Sharma, Principal, KV Rewari as Enquiry Officer to hold the inquiry against the Applicant under Rule 14 of CCS (CCA) Rules, 1965. The said Enquiry Officer submitted her report vide letter dated 11.07.2011 and a copy of the same was forwarded to the Applicant vide memorandum dated 19.09.2011 and she submitted a detailed representation against it dated 31.10.2011. After consideration of the evidence on record, facts of the case and submission made by the Charged officer in her aforesaid representation, the Disciplinary Authority came to a conclusion that both the Articles of Charges leveled against the Applicant have been convincingly proved and she did not brought forward any new material evidence which would negate the findings of the Enquiry Officer. Thereafter, the Disciplinary Authority issued its order imposing a major penalty of compulsory retirement upon her vide order dated 12.03.2012.
11. The learned counsel for the Respondents has also submitted that the Enquiry Officer gave its findings that both the articles were proved conclusively only after judiciously analyzing the submissions of the prosecution witnesses the supported by their earlier statements. The Disciplinary Authority also, after considering the submissions made by the Applicant on the inquiry report observed that no organization can function efficiently, if it tolerates employees who indulge in use of abusive language towards her superiors, colleagues and visitors etc. The said authority has also agreed with the Enquiry Officer and held that those charges have been proved conclusively.
12. They have also submitted that earlier she was under suspension and the same was revoked vide order dated 03.06.2008. Thereafter, she was posted to KV, INS, Valsura vide order dated 19.06.2008 but she did not join there. On the other hand, she filed OA No. 1299/2008 before this Tribunal and it was disposed off vide order dated 23.04.2009 with the direction to pass a speaking order on her representation dated 25.05.2009. However, the Commissioner, KVS vide memorandum dated 10.07.2009, rejected her request for posting at Delhi. As she failed to report for duty at KV, Valsura vide memorandum dated 08.12.2009, a Show Cause Notice under the provision of Article 81D of Education Code for KVS was issued to her. Against the said Memorandum, she filed Contempt Petition No. 6321/2009 in OA No. 1299/08. Later on, she filed OA No. 642/2010 against the decision of the Commissioner, KVS for not posting her at Delhi which was also disposed off, vide order dated 25.02.2010. Thereafter, the Commissioner, KVS, vide memorandum dated 28.04.2010 posted her at KVS, RO, Delhi and joined there on 30.04.2010 (FN). They have also submitted that she was again transferred to KV, Aligarh on displacement basis vide order dated 03.06.2011 in terms of transfer guidelines and she was relieved from this office on 06.06.2011 but Principal, KV, Aligarh, vide her letter dated 01.08.2011 informed the Respondent KV that neither she reported for duty nor any information was received from her. In this regard they have submitted that all employees of KVS are liable to be transferred anywhere in India at any point of time. They have also stated that while effecting transfer, the organizational interest was the topmost consideration and in that situation, the personal problems and other constraints of employees will have to remain subservient.
13. During the pendency of the OA, the Appellate Authority vide its order dated 13.10.2013 rejected her appeal and upheld the order of the Disciplinary Authority. The Applicant has filed a copy of the same along with his rejoinder in this OA. She has pointed out that when the Charged Officer was given only 45 days to submit the appeal, the Appellate Authority has taken more than 17 months to consider and reject the same.
14. We have heard the learned counsel for the Applicant Shri M.L. Chawla and the learned counsel for the Respondents Shri K.M. Singh. It is seen that the Applicant was proceeded under Rule 14 of the CCS (CCA) Rules, 1965 for imposing major penalty for entirely two different and unrelated charges. The first charge was that during the year 2007 she failed to discharge her duties in as much as (i) she did not write and maintain the cash books of VVN and School Funds account properly as there are more cuttings/over writings in the cash book and (ii) she did not prepare the transfer certificates carefully as out of 18 T.C. prepared by her 06 T.C. had to be cancelled due to the mistakes committed by her. In other words the first part of the said charge was that she failed to maintain the books of accounts of the school in a proper manner and the second part was that the she committed mistakes in preparation of the Transfer Certificates. The pertinent question in this case is whether the aforesaid two allegations would amount to any misconduct on the part of the Applicant or not. In our considered view, they are not misconduct it is a settled law that any deficiency in the discharge of ones duties or a single act of omission or error of judgment does not constitute any misconduct. (Union of India & Ors. Vs. J.Ahmed, 1979 (3) SCR 504) and P.H. Kalyani vs. Air France, Calcutta, 1964 (2) SCR 104). The relevant part of the judgment in J. Ahmed (supra) is as under:
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 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 Pierce v. Foster(1)]. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle .(Indicator Newspapers) (2)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur(1), and Satubha K. Vaghela v. Moosa Raza(2). 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".
Similarly, in State of Punjab and Others Vs. Ram Singh Ex. Constable AIR 1992 SC 2188, the Apex Court has held that mere carelessness or negligence in performance of the duty is not misconduct. The relevant part of the said judgment is as under:-
Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receive its connotation from the context, the delinquecy in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression oi established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order (emphasis given by us).
14. A Coordinate Bench of this Tribunal in OA-2210/2006 G.P.Sewalia vs. Union of India & Anr., 2009 (2) AISLJ 360, considered a similar allegation and held as under:
In view of the finding as recorded above, the applicant, as mentioned above, was visited with the penalty of reduction of pay by three stages for a period of one year without cumulative effect. It is pertinent to note that no finding of misconduct, failing to maintain absolute devotion to duty with ulterior motive, as was the charge, has been returned by the enquiry officer. The disciplinary authority has not observed that the allegations that stood proved against the applicant would be misconduct or failing to maintain absolute devotion to duty. Assuming that the said finding has to be read or presumed simply on proof of the allegation subject matter of charge, the pertinent question that would arise is as to whether the said allegation would constitute misconduct or failing to maintain absolute devotion to duty. There cannot be any exhaustive definition of misconduct. However, the same as defined in Black's Law Dictionary, Sixth Edition at page 999 would mean, thus:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. 'Misconduct in office' has been defined as:
Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under:
The term 'misconduct' implies, a wrongful intention, and not involving error of judgment.
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.
8. Having given our anxious thoughts, we have come to a firm conclusion that there is distinction between misconduct and not performing the duties as efficiently as another person similarly situate may be able to perform. Misconduct has to have some element of delinquency, may be, even gross negligence. It is only when the allegations subject matter of charge may tantamount to misconduct that a person can be proceeded for inflicting any of the punishments prescribed in the rules. Non-performance of duties, which may have no element of unlawful behaviour, wilful in character, improper or wrong behaviour, misdemeanor, misdeed, impropriety or a forbidden act, may some time amount to not carrying out the duties efficiently, but the same cannot be construed to be misconduct. If decisions that may ultimately prove to be less beneficial to an organisation for which a person is working are to be termed as misconduct liable for punishment under rules, no person discharging his duties would be able to take any major decision. The administrative work, if may not come to a grinding halt, would, in any case, slow down so much that it may cause more harm and loss to the concerned institution. From our experience from several hundred cases that we have dealt, we find that a negative and indecisive attitude is developing amongst the government officers, primarily for the reason that any decision taken which may be even in good faith, or favourably interpreting rules benefiting even a deserving government employee, may not become subject matter of disciplinary action against them. Surely, if government servants are to be tried departmentally for bona fide actions taken by them in discharge of their official duties, which may have absolutely no undertones or overtones of delinquency, the situation as prevails today is bound to aggravate.
15. The second charge against the Applicant was that she was in the habit of using unparliamentry and abusive language towards Teachers, Principals & visitors. She used unparliamentry language against Smt. Veena Rani, PRT on 03.05.2007 and Smt. Sangeeta Bhardwaj, TGT (Hindi) on 17.05.2007. Further, she has also used abusive language against the Principal on 16.06.2007 in the presence of parents and staff. Accordingly, a memo was given to her but she threw it away. The Principal informed the Assistant Commissioner about those incidents vide his letter dated 21.06.2007. Again, she failed to maintain decorum and used unparliamentry language on 10.08.2007 while Shri Sanjay Kumar, AAO was conducting the fact finding enquiry. The shouting incident occurred on 10.08.2008 was also reported by a team of teaching and non teaching staff consisting of Smt. Veena Rani, PRT, Smt. Nisha Peer, PRT, Smt. Parveen, PRT, Smt. Pallavi Singh, Computer Instructor, Shri Desh Raj, LDC and Shri Ram Bhagat, Group D. The Enquiry Officer in his report recorded the finding that the aforesaid charge has been conclusively proved. It is seen that with the Memorandum dated 12.05.2009 proposing to hold enquiry against the Applicant under Rule 14 of the CCS (CCA) Rules, 1965, the Disciplinary Authority furnished lists of eleven documents and seven witnesses to prove them. Under sub-rule (6) of Rule 14 of the aforesaid Rules, the Disciplinary Authority has also forwarded the requisite documents to Enquiry Officer. Thereafter, the enquiry was required to be held under sub-rules (14) and (15) of the aforesaid Rule. Under the said Rules, the Inquiring Authority is prohibited from permitting any new evidence except when there was any inherent lacunae or defect in the evidence which has been produced originally. The said rules are reproduced as under:-
(6) The Disciplinary Authority shall, where it is not the inquiring authority, forward to the inquiring authority-
(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour;
(ii) a copy of the written statement of the defence, if any, submitted by the Government servant;
(iii) a copy of the statements of witnesses, if any, referred to in sub-rule (3);
(iv) evidence proving the delivery of the documents referred to in sub-rule (3) to the Government servant; and
(v) a copy of the order appointing the "Presenting Officer".
XXX XXX XXX
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
(15) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary, in the interests of justice.
NOTE.- New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.
However, it is seen that when the Disciplinary Authority had relied upon only six listed documents which were the statements of the teachers recorded earlier, the Enquiry Officer called for the joint statement of some of staff of the school made on 10.08.2007 and relied upon the same. It is seen that the Inquiring Authority has used those statements to fill up the gaps in the evidence already recorded by other six prosecution witnesses. From the aforesaid action of the Enquiry Officer, his bias towards the Applicant is quite obvious.
16. Further it is seen that the Enquiry Officers report contained detailed description of the statements of the prosecution witnesses in support of the charge. However, the Enquiry Officer did not give any details of the submissions made by the Defence Witnesses refuting the charge made against the Applicant. Thus, the Enquiry Officers report is neither fair nor balanced. The Andhra Pradesh High Court in its judgment in the case of Union of India & Others Vs. G. Krishna 2005 (3) ATJ 359 held that "if the evidence only supporting the case of the department is taken into consideration and the other evidence which is equally supporting the case of the employee is omitted to be considered, it would be nothing but non-application of the mind and biased the attitude of the Enquiry Officer. Similarly, the High Court of Delhi in its judgment in the case of GNCT of Delhi and Others Vs. ASI Rambir Singh and Another [W.P. ( C) N.7680/2010) decided on 18.12.2012 held that when the testimony of the Defence Witness has gone unchallenged, there is no alternative but to accept the same.
17. As held by the Apex Court in State of U.P. Vs. Saroj Kumar Sinha 2010 (2) SCC 772, the function of the Inquiring Authority is to examine the evidence presented by the Department, he should not act as a prosecutor as well as a judge and he must be wholly unbiased. The relevant part of the said judgment is as under:-
28. An Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
31. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said:-
"..Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
18. Again, admittedly compulsory retirement from service is one of the major penalties prescribed in Rule 11 of the CCS (CCA) Rules, 1965. According to the said Rule, any penalty, minor or major, can be imposed upon the Government servant for good and sufficient reasons. Obviously, the type of punishment will depend upon the gravity of the misconduct proved during the departmental enquiry proceedings. In the present case, as stated earlier, there were two distinct and different Articles of Charge against the Applicant. According to the Enquiry Officer, both the Articles of Charge have been conclusively proved. The Disciplinary Authority fully agreed with the said report. It is based on the aforesaid two charges held to be proved, the Disciplinary Authority has imposed the major penalty of compulsory retirement from service upon the Applicant. For the reasons stated earlier, we find that the first Article of charge was not a misconduct. Therefore, the only misconduct which could have been alleged against the Applicant was the one contained in the second Article of charge. Therefore, there is no justification for the Disciplinary Authority to impose the severe penalty of compulsory retirement upon the Applicant only for the second Article of Charge alone which was held to be proved by the Enquiry Officer and agreed to by the Disciplinary Authority.
19. Now the validity of the impugned transfer order dated 3.8.2011 transferring the Applicant from RO Delhi to K.V. Arjangarh needs to be considered. Admittedly, the said order of transfer was made during the pendency of the disciplinary proceedings initiated on 12.5.2008 which culminated in the Disciplinary Authoritys order dated 12.3.2012 compulsorily retiring him from service. According to the Respondent, while issuing the aforesaid letter, the organizational interest was the topmost consideration. It is not understood as to how the organizational interest will be served by transferring an employee who was facing major penalty proceedings which could result even in his/her dismissal/removal from service. Moreover, the transfer order was made during the period the Applicant was undergoing treatment in the hospital. The Respondents response in this regard was that they have no comments to offer. In our considered view, when the applicant was facing major penalty proceedings, transferring her to another place, after the enquiry was over and before the Disciplinary Authority passed its order cannot held to be in the organizational interest as claimed by the Respondents. As held by the Apex court in B. Varadha Raos case (supra), it is one thing to say that the transfer has been made in public interest but from the facts of the case it would be seen that it was made for collateral purposes with oblique motives.
20. It is further seen that the Applicant made the appeal against the order of the Disciplinary Authority dated 12.3.2012 on 23.4.2012. She waited more than eight months for the Appellate Authority to pass its order. Thereafter, she has filed this OA only on 19.12.2012 and notice was issued on 10.1.2013. The Respondents were very well aware that the said appeal was pending. Still they took more than another nine months to file their reply on 20.9.2013. Finally, the Appellate Authority at its own chosen time passed its order only on 13.10.2013 rejecting the appeal. In our considered view, the Appellate Authority, being a statutory authority was duty bound to consider and dispose of the appeal within a reasonable time. In any case the period of one year and five months taken by the Appellate Authority cannot be considered as a reasonable period. Moreover, the aforesaid order is in violation of the provision contained in Rule 19 (4) AT Act, 1985 which reads as under:
(4) Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules. Therefore, the appeal in his case has got abated and the appellate order now passed is bad in law being violative of the aforesaid provision of the Act. In any case, by the said order since the Appellate Authority has rejected the appeal of the Applicant, it does not make any material change in the matter.
21. In view of the above position, we quash and set aside the impugned enquiry officers report dated Nil September 2011, Disciplinary Authoritys order dated 12.3.2012, the transfer order of the applicant dated 3.6.2011 and the Appellate order dated 13.10.2013. Consequently, Respondents shall reinstate the applicant with all consequential benefits except full back wages. However, in the facts and circumstances of the case, the Applicant shall be paid 50% of the back wages.
22. The Respondent shall comply with the aforesaid directions within a period of two months from the date of receipt of copy of this order. No order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh