Central Administrative Tribunal - Allahabad
Dr Rishi Pal Sharma vs M/O Human Resource Development on 10 March, 2022
1
Reserved on 21.02.2022
Pronounced on 10.03.2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Original Application No.330/464/2014
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Ms. Pratima K Gupta, Member(J)
Dr. Rishi Pal Sharma, Son of late Ratan Lal Sharma, Principal
JawaharNavodayaVidyalaya, Mathura, U.P.
. . .Applicant
By Adv: Shri K.P. Singh
VERSUS
1. Union of India through its Secretary, Ministry of Human Resources
Development, New Delhi.
2. Commissioner, Navodaya Vidyalaya Samiti, Autonomous
Organization under Ministry of Human Resource Development,
Department of School Education & Literacy, Govt. Of India, B-15
Institutional Area, Sector-62, NOIDA-201307 (UP).
3. Human Resource Minister and Chairman, Navodaya Vidyalaya
Samiti, Shastri Bhawan, New Delhi.
. . .Respondents
By Adv: Shri Vinod Mishra
ORDER
By Hon'ble Ms. Pratima K Gupta, Member (Judicial) By way of this original application the applicant has prayed for the following reliefs: -
"(i)Issue an order for setting aside the impugned order dated 08.10.2013 , passed by respondent no.2 and communicated vide letter dated 18.10.2013 (Annexure-1) as well as the order dated 27.01.2014 passed by respondent no.3 and communicated vide order dated 05.02.2014 (Annexure-2).
(ii)Issue order, or direction to the respondents to give all service benefits including arrears of salary and further to consider promotion of the applicant to the post of Assistant Commissioner, Navodaya Vidyalaya Samiti from due date i.e. juniors to the applicant have been given with all consequential service benefits including difference of salary.Page 1 of 13 2
(c)Issue order or direction in favour of the Applicant against the respondents as the Hon'ble Tribunal may deem fit and proper under the circumstances of the case".
2. The facts of the case are as follows: The applicant while discharging his duties as Principal in Jawahar Navodaya Vidyalaya, (hereinafter referred to as JNV) Etah, U.P. during the period from 21.09.2010 to 27.02.2013 was proceeded departmentally under Rule 14 of CCS (CCA) Rules, 1964 for alleged misconduct contravening Rule3(1)(i)(ii) and Rule3(2)(i) of CCS (Conduct) Rules, 1964 as applicable to the employees of Navodaya Vidyalaya Schools (NVS). The charge memo along with statement of imputation of misconduct and list of documents by which articles of charge against the applicant was proposed to be sustained were served upon the applicant. The applicant duly participated in the enquiry proceedings. The enquiry officer submitted his report partially proving the charges. The disciplinary authority disagreed with the enquiry report, copy of the enquiry report along with the disagreement note for the reasons stated therein were provided to the applicant. The applicant responded to the same thereafter the disciplinary authority passed the penalty order dated 08.10.2013 imposing the penalty of reduction of pay by three stages in the time scale of pay for a period of three years on the Charged Officer, Shri R.P. Sharma with immediate effect. It is further ordered that Shri R.P. Sharma will earn increments of pay during the currency of this penalty and that the penalty imposed on him will not operate for postponement of his normal future increments. The applicant preferred appeal before the appellate authority and the same was rejected vide order dated 27.01.2014 upholding the order passed by the disciplinary authority. Aggrieved by the said orders, the applicant has approached this Tribunal.
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3. The learned counsel for the applicant made detailed submissions, the same are summarised as follows.
i) That is a case of no evidence the disciplinary authority has based his opinion only on hearsay evidence. There is no evidence to support the charges against the applicant. The inquiry officer has not proved the charges. The Learned counsel relies on Rajinder Kumar Kindra Vs. Delhi Administration through secretary (Labour) and Others, 1985 SCC (L&S)
131.
"It is equally well-settled that where a quasi-judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. The industrial tribunal or the arbitrator or a quasi-judicial authority can reject not only such findings but also the conclusion based on no legal evidence or if it is merely based on surmises and conjectures unrelated to evidence on the ground that they disclose total non- application of mind. Viewed from either angle, the conclusion of the enquiry officer as well as of the arbitrator Mr. Kakkar are wholly perverse and hence unsustainable. The High Court, in our opinion, was in clearly error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence.
Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost- sight of and the High Court ought not to have short circuited the writ petition.
If there is absolutely no evidence in support or the only allegation of misconduct namely negligence in not keeping one's private cheque book in safe custody, the conclusion is not only not a plausible one but it is wholly perverse and we are in complete agreement with findings recorded Mr. G.C. Jain that the findings of enquiry officer were perverse and the enquiry was wholly vitiated.
Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non- application of mind the only course open to us is to set it aside and consequently relief of reinstatement must be granted and nothing was pointed to us why we should not grant the same.Page 3 of 13 4
ii) That the orders passed by the disciplinary/appellate authorities are in violation of principles of natural justice as the disciplinary authority as well as the appellate authority have not given him a fair opportunity to defend himself.
iii) The disciplinary authority and the appellate authority have passed cryptic orders as the same are non-speaking and without stating reasons. There is no application of mind as to the misconduct alleged against the applicant.
iv) The applicant cannot be held responsible for the alleged incident as it was the duty of the warden/home master Shri Bhagat Singh, who was in-charge of the hostel to manage the children as he was their custodian.
v) The applicant cannot be held responsible being the head of the institution has many duties/functions to perform including administrative work and, therefore cannot be physically present everywhere himself.
vi) The counsel for the applicant has relied on para 29 of the original application wherein he submits that similar suicidal incidents have taken place in as many as 11 different schools of the NVS and none of the principals of the respective schools have been proceeded against. He submits that the applicant has been discriminated vis-a-vis such other principals who have not been proceeded against.The Ld Counsel in support of the argument draws support from the judgement passed by the Apex court in Tata Engineering & Locomotive Co. Ltd. Vs. Jitendra Pd. Singh & Anr., decided on 20.09.2000.
"These appeals are filed in a proceeding arising out of a reference to the Labour Court on the allegation that certain acts of the first respondent in an incident that took place on April 14, 1985, amounted to misconduct under Standing Order 24 (XIV) of the Certified Standing Orders which reads as follows:Page 4 of 13 5
Drunkenness, fighting or riotous or disorderly or indecent behavior or any act subversive of discipline or efficiency.
XxxxGlaxo Laboratories v. The Presiding Officer, Labour Court, Meerut and Ors. . Ultimately, however, the two learned Judges agreed on the aspect of the matter that the question whether on misconduct, attributed to the workman there should have been causal connection between misconduct and employment of the workman may not be of much significance when such acts have taken place within premises of the factory should be decided in an appropriate case. What influenced the Court in deciding the matter is that:
Since as many as three workmen on almost identical charges were found guilty of misconduct in connection with the same incident, though in separate proceedings, and one was punished with only one month's suspension, and the other was ultimately reinstated in view of the findings recorded by the Labour Court and affirmed by the High Court and the Supreme Court, it would be denial of justice to the appellant if he alone is singled out for punishment by way of dismissal from service.
vii) The entire career of the applicant has been unblemished. The independent authorities i.e. District Magistrate in his enquiry has appreciated the way in which the applicant has handled the incident. He further submits the FIR lodged in pursuance of the incident was closed at the initial stage itself after the inquiry by the police.
viii) There is a managing committee in the school in which the applicant is the Principal Member Secretary, should be held responsible for the alleged incident as it failed in its duty. He submits that it was the function of the managing committee to discharge general supervision including the discipline. The relevant part of the circular reads as under:-
"III. Functions/Powers of the Management Committee
a).....
b).....
c)....
d)To exercise general supervision over the proper running and functioning of Vidyalaya including maintenance of discipline among students as well as members of staff.Page 5 of 13 6
e)....
f)To make suggestions for any improvement or reform or other procedure relating to the Vidyalaya."
4. The respondents while rebutting the arguments made on behalf of the applicant submitted that the applicant being the principal cannot be absolved of the charges levelled against him, it cannot be stated that the applicant is not be responsible for the incident. He further submits that there is no negative equality in law, the applicant has not alleged any mala fide against the respondents. There is no legal infirmity in the disciplinary proceedings, the applicant was afforded sufficient opportunity to present his case. The disciplinary proceedings were held strictly as per rules. The principles of natural justice have been fully complied with. The orders passed by the disciplinary authority as well as by the appellate authority are explicit. The charge against the applicant is that of the supervisory lapse. He further submits that the inquiry officer charge has partially proved the charge to the extent that the suicidal action was taken by the deceased child due to the atrocities of the police authorities in the academic block and the child was so emotionally disturbed that he could not bear the mental agony and the trauma caused to him by the police authorities. The charged officer was present when the deceased child was abused in derogatory languages on caste based remarks. The counsel for the respondents further points out that the abuse language used by the police SHO on the students happened in present of the charged official though the beating happened in his absence. Accordingly, the Disciplinary Authority, as well as Appellate authority has passed the impugned orders. He submits that the enquiry proceedings are independent of the criminal proceedings. The charges against the applicant stand on its own legs on the evidence Page 6 of 13 7 relied upon by the disciplinary authority. It cannot be ignored that the applicant being the head of the institution was fully responsible of the alleged incident. The learned counsel for the respondents relied upon in the case of State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya (2011 4 SCC 584). The relevant portion of the order reads as under:-
The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquittal.
5. Heard Shri K.P. Singh, learned counsel for the applicant and Shri Vinod Mishra, learned counsel for the respondents and perused the documents available on record.
6. In order to decide this case we may refer to the statement of imputation of misconduct or misbehaviour in support of the Articles of Charge framed against the applicant that reads as follows: -
ARTICLE 1 "That the said Shri R.P. Sharma while discharging his duties as Principal JNV-Etah (U.P.) during the wee hours of 27.02.2013 failed in exercising control over the Vidyalaya functioning leading to the suicidal death of Master Raj Kumar, student of class XII(Humanities) by hanging from a tree adjacent to boy's dormitory during the wee hours of 29.01.2013. Master Raj Kumar took this extreme step of terminating his life out of physical assault and abuses in derogatory language on caste basis meted out on him by the local Police who entered the Page 7 of 13 8 Vidyalaya campus at the instance of the Charged Officer, Shri R.P. Sharma.
On 28.01.2013 at about 1415 hours, a proclaimed notorious student of JNV-Etah (U.P.) viz. Master Ashish Yadav approached the Charged Officer, Shri R.P. Sharma with a suicidal note said to be written by another class XII student Master Shubham. Master Ashish Yadav informed the Charged Officer, Shri R.P. Sharma that Master Shubham is not available in the Vidyalaya campus. On searching the boy was found missing from the Vidyalaya. In the mean time, persons from Electronic Media arrived on the campus, reportedly at the instance of Master Ashish Yadav. Thereafter, the students demanded a search for the missing boy immediately and created disturbances in the Vidyalaya. The Charged Officer, Shri R.P. Sharma informed the police who came to the Vidyalaya and started questioning the students. Master Ashish Yadav had given assurance to the SHO that he will disclose the whereabouts of the missing boy if no student will be punished or dismissed by the Vidyalaya. He got a letter of assurance from the Principal to that effect and thereafter the boy was traced with the help of Master Ashish and brought to the Vidyalaya by the Police at around 7.30 p.m.. Thereafter the students of class XII were called in the Academic block. The students have complained that the SHO passed caste based remarks, used derogatory language and they were beaten up in presence of the Charged Officer. After this incident Master Raj Kumar, student of class XII went to the dormitory in a depressed condition and did not go for dinner. Later on the House Master consoled him and he took dinner. As per the statement of fellow students, the boy was seen studying till 1:30 a.m. and in the morning his body was found hanging from a tree adjacent to the boys' dormitory. Master Raj Kumar left a suicide note. The extract of the note reveals that he "was beaten up by one Shri Subodh Yadav, SHO Police and used derogatory languages on caste basis". It is mentioned in the note that "he was punished because he belongs to SC category and Master Ashish Yadav was left free as he belongs to Yadav family".
The Charged Officer Shri R.P. Sharma quietly watched the atrocious actions of the local police on his students notwithstanding the fact that he is their loco parentis. Thus the house system prevailing in the Vidyalaya appeared to be only a paper formality. Had the Charged officer taken some effort in ensuring functioning of proper house system in the JNV, missing of the student would have been immediately noticed and the suicidal incident would have not happened. From the above, it is very clear that Shri R.P. Sharma not only failed in managing a residential institution with full devotion but also failed to ensure integrity and devotion of the subordinate functionaries under his control and authority. Hence charged under rule 3(1)(i) (ii) and Rule 3(2)(i) of CCS(Conduct) Rules 1964, as applicable to the employees of NVS. "
7. The inquiry officer submitted his report on 12.08.2013. Page 8 of 13 9 There by partially proving the charge has concluded. Last para 10 of the report is reproduced below:-
"On the basis of the state exhibits, defence exhibits and deposition of the State witnesses adduced during the enquiry the undersigned has concluded that Master Ashish Yadav on 28.01.2013 approached the Principal Sh. R.P. Sharma with a suicidal note written by another class-XII student master Shubham. It was informed that Master Shubham was missing. During the frantic search by the School Administration, Media Personnel arrived in the campus and the students created disturbances in the school. There is written instructions in the safety and security guidelines of the Samiti that any missing incident of student should be reported to the police authorities who took actionimmediately and the Charged Officer intimated to the police law and order situation in the campus after questioning the students. Master Shubham was traced out with the help of Master Ashish. Thereafter the students of Class-XII were called in the academic block. It is evident that SHO passed objectionable caste based remarks using unparliamentary language and the students were beaten up. There is no direct evidence to establish that the Charged Officer was present at the time when deceased child was beaten up but the hearsay evidence, circumstantial evidence and the suicidal note written by the deceased child establishes that the Charged Officer was present, though he would have come to that place at a later stage from his chamber when the police had already gathered the students in the academic block. The suicidal note indicates that the child has taken this extreme step to end his precious life because he was emotionally disturbed due to the atrocities of the police authorities. The Charged Officer had not called the police authorities with any other intention except to follow the safety and security guidelines which clearly indicates that the missing of child from the school campus should be reported to the police authorities lodging FIR. Therefore, for the atrocities of the police authorities, the Charged Officer may not be made directly responsible for the lapses of others who took law and other situation in their hand and to tackle the situation they adopted their own devices. There is no evidence that the house system prevailing in the Vidyalaya was only a paper formality. The deposition of the state witnesses/defence witnesses and other documentary evidence produced by the Charged Officer establishes that the house system in the JawaharNavodayaVidyalaya, Etah was proper and missing of student from the school campus was just because of atrocities of few students. The Charged Officer is not directly responsible for the suicidal incidents which have taken place in the institution. Therefore, the charges that Sh. R.P. Sharma, Principal not only failed in managing a residential institution with full devotion but also failed ensure integrity and devotion of the subordinate functionaries under his control and authority is not fully substantiated but the charge is partially proved to the extent that the suicidal action was Page 9 of 13 10 taken by the deceased child due to the atrocities of the police authorities in the academic block and the child was so emotionally disturbed that he could not bear the mental agony and the trauma caused to him by the police authorities. The Charged Officer was present when the deceased child was abused in derogatory languages on caste basis remarks. This is substantiated on the basis of indirect evidence (Circumstantial as well as hearsay evidence)."
8. Disagreeing from the enquiry report the disciplinary authority proceeded with the disagreement note for the reasons stated therein to the applicant. The disagreement note reads as follows:-
"Reference notes from page 10 ante regarding report of the inquiry conducted under Rule 14 of CCS(CCA) Rules 1965 on the charge sheet against Shri R.P. Sharma, Principal.
I had perused the report alongwith all relevant documents on record. The charge of use of abusive language as well as manhandling of students in JNV, Etah Campus are proved in the inquiry. The Charged Officer Shri R.P. Sharma cannot be absolved of his responsibility merely because he was not present when the students were manhandled by the Police SHO. Considering of his role as loco-parentis of the students, the charged officer should have ensured that no outsider meets or question the children in his absence. Hence I conclusively hold the charge as proved and I disagree with the report of the Inquiry Office to that extent.
Copy of the Inquiry report together with my note of disagreement and tentative mind to impose a major penalty may be forwarded to the charged officer Shri R.P. Sharma, Principal for making his submissions, if any, before final orders are issued."
9. The Disciplinary authority has recorded that the applicant was not directly involved in the incident, rather he has been held responsible for not discharging his duties being the principal and custodian of students in the institution. The applicant submitted his reply to the same and the disciplinary authority proceeded with inflicting the penalty order dated 08.10.2013. The relevant portion of the order reads as under:-
"After careful consideration of the matter, the undersigned hold Shri R.P. Sharma, Principal guilty of the charge. The students are entrusted to the case of a Principal in a residential school and hence it is his bounden duty to ensure their safety and security inside the Campus besides being responsible and compassionate towards them. The Page 10 of 13 11 undersigned have come to the conclusion that sufficient reasons exist for imposing a major penalty on the said Shri R.P. Sharma. And undersigned accordingly imposes the penalty of reduction of pay by three stages in the time scale of the pay for a period of three years on the Charged Officer, Shri R.P. Sharma, Principal with immediate effect. It is further ordered that Shri R.P. Sharma will earn increments of pay during the currency of this penalty and that the penalty imposed on him will not operate for postponement of his normal future increments."
10. The applicant filed an appeal before the appellate authority and the appellate authority while agreeing with the decision of the disciplinary authority confirmed the order passed by the disciplinary authority.
11. It is not in dispute that the applicant was Principal of the School at the relevant time when the incident took place. We cannot appreciate the argument of the Ld counsel for the applicant that the applicant has been discriminated against viz. the other Principals of different schools under the Navodaya Vidyalaya wherein suicides have been committed by the students. We cannot accept such an argument being perverse. There is a specific recording by the inquiry officer that the applicant was present when the police officers used abusive language (caste related remarks) establishing that the applicant was aware that the deceased student was in distress and needed extra attention. There cannot be any negative equality in law. The judgment relied upon by the applicant does not help him as in the said judgment the applicant therein was proceeded against alongwith others in a common charge sheet while the facts are quite different in the present case. It cannot be a ground that since the other Principals have been left by Navodaya Vidyalaya the applicant should also not have been proceeded against.
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12. With respect to not complying with the principles of natural justice it is clear that the applicant had participated in the enquiry and he has not alleged or pointed to any infirmity in the enquiry proceedings. Once the enquiry proceedings have not been challenged or any infirmity pointed out, the decision based on the said enquiry proceedings cannot be in violation of principles of natural justice. The applicant has filed his reply to the disagreement note which has been duly considered by the disciplinary authority by passing a detailed and well-reasoned order and the same has been upheld by the appellate authority. Agreeing with the decision of the disciplinary authority that the applicant who is the Principal of the institution cannot be absolved of his responsibility as he was not physically present when the students were manhandled by the police SHO in the Kendriya Vidalaya campus and, upholding the findings of the disciplinary authority that as a principal he had a role of loco parentis of the students and the applicant should have ensured that no outsiders met or questioned the students in his absence. The appellate authority confirmed the penalty order.
13. From the above, it is clear that the charge against the applicant is not that the applicant was in any way physically involved in the incident or there was any act of commission on account of the applicant which has contributed to the incident, rather the charge against the applicant was of omission on the part of the applicant in the discharge his duties as principal in the residential school. It was his duty to ensure safety and security of the students in the campus. The applicant was principal of the school and he was the custodian of the student. The incident points towards a serious supervisory lapse, firmly established by Page 12 of 13 13 extraneous evidence and the same can be concluded only by preponderance of evidence. The relied upon judgment does not come to the rescue of the applicant as the charge against the applicant itself is not a direct one. We have no hesitation in concluding that since the applicant was aware of the atrocities by the police on a student he should have been more vigilant in ensuring the safety and security of students within the campus premises. It was his duty to assess the situation and take charge of the residential accommodation under his direct control by way of eliminating the subordinates. Irrespective of the role of the subordinate he should have acted with due diligence considering the volatile situation. It was not an impromptu situation wherein the applicant did not get time to react or respond and could have taken corrective measures to keep the situation under his control. When parents send their wards to residential schools like the Navodaya Vidyalayas- the flagship schools of the government- they do so with assurance that their children will be safe and protected, and certainly not subjected to any injustice or atrocities. Therefore, the onus of their security lays with the loco parentis of the institution - in this case the Principal. He cannot claim innocence. Even if we were to take a very liberal view, the applicant is definitely guilty of negligence and supervisory failure.
14. In view of the above, the original application is dismissed as it does not warrant any interference. No order as to costs.
(Pratima K Gupta) (Tarun Shridhar)
Member (Judicial) Member(Administrative)
/Neelam/
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