Central Administrative Tribunal - Delhi
Smt. Usha Sonal vs Kendriya Vidyalaya Sangathan on 12 February, 2014
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.542/2012
Order reserved on: 15.01.2014
Order pronounced on 12.02.2014
Honble Shri G.George Paracken, Member (J)
Honble Shri Shekhar Agarwal, Member(A)
Smt. Usha Sonal
w/o Sh. R.S.Sonal,
r/o 123/2, Staff Quarters,
K.V. AFS, Sarsawa,
Sharanpur (UP). ..Applicant
(By Advocate: Sh. Yogesh Sharma)
Versus
1. Kendriya Vidyalaya Sangathan,
Through the Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi.
2. The Assistant Commissioner,
K.V.S. (Dehradun Region),
Salawala, Hathibarkala,
Dehradun-248001.
3. The Principal,
Kendriya Vidyalaya Sangathan, AFS,
Saraswa,
Saharanpur (UP).
4. Ms. Rachana Dev,
Principal,
Kendriya Vidyalaya, AFS, Sarsawa,
Sharanpur (UP). .Respondents.
(By Advocate: Sh. S.Rajappa)
ORDER
Shri G.George Paracken, M(J) In this Original Application, the Applicant has challenged the charge sheet dated 21.02.2011, the orders passed by the Disciplinary Authority dated 14.03.2011, Appellate Authority dated 16/18.05.2011, Revisional Authority dated 23.01.2012, order of her transfer dated 16/24.05.2011 and the relieving order dated 28.05.2011.
2. The brief facts of the case are that the Applicant, while working as a teacher in Kendriya Vidyalaya AFS, Sarsawa, Sharanpur, (UP), the 4th Respondent, Ms. Rachana Dev, Principal of the said Vidyalaya issued her a Memorandum No.PF/US/2010-11/26 dated 21.02.2011 proposing to take action against her under Rule 16 of the CCS (CCA) Rules, 1965 for violation of Rule 3(1) (iii) of CCS (Conduct) Rules, 1964 as applicable to the employees of Kendriya Vidyalaya Sangathan, vis-`-vis the code of conduct for teachers vide Article 59 (34)(a) (iii) of the Education Code for Kendriya Vidyalayas. The Statement of Imputation of Misconduct/ Misbehaviour on which action proposed to be taken against her was as under:-
ARTICLE-I Smt. Uma Sonal, while functioning as Head mistress at Kendriya Vidyalaya, AFS, Sarsawa, on 23.12.2010 at 1.30 p.m. entered into the chamber of the Principal, KV, AFS, Sarsawa and used extremely offending words before the Principal, Kendriya Vidyalaya, AFS, Sarsawa to register verbal complaint against Primary teachers of the Vidyalaya, in presence of Smt. Abha Tyagi, Primary Teacher. She spoke in high pitch started shouting on the undersigned no Primary Teacher attended the meeting nor showed his/her diary because you were not cooperating with me and I am watching the same since November. Whosoever listens to you and you listen to them, get the work done through them.
ARTICLE-II Smt. Uma Sonal while functioning as Head Mistress in KV, AFS, Sarsawa, levelled false and baseless allegations on the Principal on 10.01.11 stating that she came to be Principals chamber with her Diary on 08.12.2010 and that the Principal was not available as she had gone to her home whereas the Principal was very much available in the school on 8th Dec, 2010. Hence, Smt. Uma Sonal, Head Mistress falsely alleged that the Principal had gone to her home during working hours. This is an act of insubordination, unfaithfulness, dishonesty and untrustworthiness on the part of said Smt. Uma Sinal, Head Mistress.
ARTICLE-III Smt. Uma Sonal while functioning as Head Mistress at Kendriya Vidyalaya, AFS, Sarsawa on dated 30.9.2010 dated 23.12.2010 and dated 31.01.2011 and on several other occasions, subjected the Primary Teachers to a lot of humiliation by making them sit on durries during meeting with PRTs whereas herself sat on the Chair which is absolutely against the dignity of Primary Teacher and behaving with them in a manner not suiting her status as the Headmistress of a reputed organization. This act on the part of said Smt. Uma Sonal, Head Mistress acted in a manner which is unbecoming of a Government servant.
ARTICLE-IV Smt. Uma Sonal while functioning as Head Mistress at Kendriya Vidyalaya, AFS, Sarsawa on dated 10.1.2011 leveled false allegation on the Principal that the Principal used caste based remarks against her on 23.12.2010 in her office. On 29.01.11, Smt. Uma Sonal, HM tendered verbal apology for the same in presence of UDC Sh. Amardeep in Principals office pressurizing the Principal to tear the memorandum issued to her but did not tender a written apology for the same.
Thus, Smt. Uma Sonal, HM failed to maintain absolute integrity and acted in a manner which is unbecoming of a Government servant.
3. The Applicant replied to the aforesaid Memorandum on 02.03.2011 denying all the aforesaid charges. She has stated she has good relationship with other teachers. She has also stated that since she herself belongs to the reserved community, there was no question of her not liking the people of the reserved communities. Further, she has stated that as HM she fully obeys the orders of the Principal. She has also requested to the Principal to forgive her if there was any fault on her part.
4. Thereafter, the Respondent No.4, vide her order dated 14.03.2011, imposed the penalty of reduction to a lower stage of pay in the same Pay Band by one stage for a period of two years, without cumulative effect and not adversely affecting her pension with immediate effect. The relevant part of the said order reads as under:-
The undersigned has considered the submission made by Smt. Sonal, HM Officer in her reply dated 02.03.2011 and perused the record available relating to the disciplinary case and observed that:
ARTICLE-I The contention of Smt. Uma Sonal vide her reply dated 02.03.2010 she politely brought the facts of meeting in the interest of Vidyalaya is wrong as the Charged Officer had used extremely offending words like no Primary Teacher attended the meeting nor showed his/her diary because you were not cooperating with me and I am watching the same since November. Whosoever listens to you and you listen to them, get the work done through them before the Principal, Kendriya Vidyalaya, AFS, Sarsawa in presence of Smt. Abha Tyagi, Primary Teacher.
Hence, Smt. Uma Sonal, HM acted in a discourteous manner and failed to maintain the decency required from a literate person of her profession and committed misconduct which is unbecoming of a Government servant and therefore, violated Rule 3(1) (iii) of CCS (Conduct) Rules, 1964 as applicable to the employees of Kendriya Vidyalaya Sangathan, vis-a-vis the code of conduct for teachers vide Article 59 (34)(a) (iii) of the Education Code for Kendriya Vidyalayas.
ARTICLE-II Smt. Uma Sonal, Head Mistress in her reply dated 02.03.2011, has stated that on 08.12.2010 after getting the teachers diary signed by you I came to attend the meeting but for sometime you were not in the premises of the school and went to your residence which was in the school premises itself. I am very much sure that you were present in the school premises and usually comes to school in time whereas on 10.02.2010 she had categorically stated that the Principal was not available as she had gone to her home. Hence, Smt. Uma Sonal, Head Mistress is twisting her own statements which proves that she has leveled false and baseless allegation against the Principal on 10.01.2010. The fact is that the Principal was very much available in the Principals chamber and did not leave the Vidyalaya during the working hours. Hence, the charge of insubordination, unfaithfulness, dishonesty and untrustworthiness is established against Smt. Uma Sinal, Head Mistress.
Hence, Smt. Uma Sonal, HM committed misconduct and failed to maintain absolute integrity and acted in a manner which is unbecoming of a Government servant and therefore, violated Rule 3 (1) (i) (iii) of CCS (Conduct) Rules, 1964 as applicable to the employees of Kendriya Vidyalaya Sangathan, vis-a-vis the code of conduct for teachers vide Article 59 (34)(a)(i)(iii) of the Education Code of Kendriya Vidylayas.
ARTICLE-III Smt. Uma Sonal, Head Mistress stated in her reply dated 02.03.2011 that during the meeting all the PRTs used to sit on the chairs. In the same reply she has further added that shortage of chairs has been brought to the notice of the office and requisition for chairs has also been submitted on 10.10.2010. Thus, the statement of Smt. Uma Sonal, Head Mistress is itself contradictory as one hand she has stated that all the PRTs used to sit on the chairs whereas on the other hand, she has stated about the shortage of chairs for them. The fact is that Smt. Sonal on dated 30.9.2010, 30.10.2010, dated 23.12.2010, dated 31.01.2011 and on several other occasions, made the Primary teachers sit on durries during meeting with PRTs whereas herself sat on the Chair which is absolutely against the dignity of Primary Teachers and behaving with them in a manner not suiting her status as the Headmistress of a reputed organization.
ARTICLE-IV The contention of Smt. Uma Sonal, Head Mistress in her reply dated 02.03.2011 that on 23.10.2010 she did not level false allegations against the Principal but had only submitted an explanation is not justified. The fact is that Smt. Uma Sonal tendered a verbal apology on dated 29.01.2011 for leveling false allegations against the Principal in presence of Shri Amardeep, UDC and pressurized the Principal to tear the Memorandum issued to her. Further, the submission of Smt. Uma Sonal that words like you were disliked by everyone. No body cooperates with you are treated as caste based words in the tribal community is not justified.
The undersigned, being the Disciplinary Authority, after considering the records, submissions made by Smt. Uma Sonal, Head Mistress vide her reply dated 02.03.2011 and the facts and circumstances of the case as above, concludes that the Charged Officer cannot be acquitted of the charges against her and is of the view that it will meet the ends of justice, if a penalty of reduction to a lower stage of pay in the same Pay Band by one stage for a period of two years, without cumulative effect and not adversely affecting her pension is imposed upon Smt. Uma Sonal, Head Mistress, with immediate effect.
Accordingly, a penalty of reduction to a lower stage of pay in the same Pay Band by one stage for a period of two years, without cumulative effect and not adversely affecting her pension is imposed upon Smt. Uma Sonal, Head Mistress, with immediate effect.
5. Applicant made appeal dated 26.04.2011 against the aforesaid order of the Disciplinary Authority wherein she has stated that she was appointed on 08.01.1990 and as PGT on the basis of test held on 27.03.2001. Initially, she joined KVS Mussoorie and transferred to KVS Sarsawa where she joined on 05.05.2007. There she worked under the Principals Shri Jayati Prasad and Shri S.K. Vats and lastly under Smt. Rachna Dev, Principal. She I used to attend the meetings as held in the KVS in the end of the month and used to follow the instructions given by the Principal. On 23.12.2010, Smt. Shashi Anand, Primary Teacher requested all the teachers to be present in the meeting to discuss about the festival to the celebrated in the end of December. On that day when she went to the Principals room, Mrs. Abha Tyagi, Primary Teacher was sitting there. The Applicant got the teachers diary and the minutes of the meeting signed by the Principal. However, Mrs. Abha Tyagi told her that school has been closed and all teachers have gone home. Then she informed the Principal that meeting could not be held and as a result some points were left undiscussed. After hearing the same, Principal got annoyed. However, on 04.01.2011, the Principal issued an Advisory Note stating that she used high pitch language while entering her room. According to the Applicant, if the aforesaid allegation was correct, the Principal would not have signed the teachers diary and the minutes of the meeting. She has also stated that the version of the Principal that she went to her room at 01.30 PM was absolutely wrong because if that was so, the meeting would have taken place. Further, during her 21 years of service, she had never been blamed with such type of act. However, the Appellate Authority, vide its order dated 16/18.05.2011, rejected her appeal and upheld the orders of the Disciplinary Authority. The relevant part of the said order reads as under:-
The undersigned, being the Appellate Authority has considered all the facts on record, charges leveled against Smt.Uma Sonal, Head Mistress and submission made by her in the appeal dated 26.04.2011 and observed as under:-
1. As per records of attendance register of Kendriya Vidyalaya, AFS, Sarsawa for the month of December, 2010, all the Primary Teachers were available in the Vidyalaya uptill 2.10. PM on 23.12.2010 and, they departed from the Vidyalaya after 02.00 PM on 23.12.2010. Hence, the submission made by Smt. Uma Sonal that had there been teachers in the school by 01.30 PM then the meeting would have been commenced and no such incident would have occurred, is not justified.
As per records of the Vidyalaya and statements of the Primary Teachers by the fact finding inquiry committee formed by the Principal vide Order dated 09.02.2011, it is evident that a meeting of PRTs has been convened by Smt. Uma Sonal on 23.12.2010. Hence, the submission of Smt. Uma Sonal that the meeting could not be convened, is not justified.
The submission of Smt. Uma Sonal that the Principal on 23.12.2010 at 12.20 PM uttered caste and religion based words, is not justified as the words used by the Principal in her statement You are not liked by anyone and moreover no Principal every cooperates you had no relation to the caste and religion.
The statement dated 09.02.2011 of Smt. Abha Tyagi, Primary Teacher before the Fact Finding Committee, is evident that she was present in the Principals chamber on 23.12.2010 during the course of conversation going on between Smt. Uma Sonal and Smt. Abha Tyagi was not available in the chamber of the Principal during her conversation with the Principal on 23.12.2010 is not justified.
2. Smt. Uma Sonal in her reply dated 02.03.2011 to the Charge Sheet dated under the relevant part that Appellant has got full confidence in you that you were very much present in the school premises.
Smt. Uma Sonal has made submission in her appeal that after return of Appellant from leave on 08.12.2010 she went into the Principals room and got her diary signed by the Principal but she was not there. After enquiry, I came to know that she has gone to her home which is within the premises of the school. This submission of appellant is contradictory to her own statement dated 02.03.2011. Hence, the submission made by the Appellant has no justification.
3. The submission made by Smt. Uma Sonal in her reply dated 02.03.2011 to the Principal and in her appeal dated 26.04.2011 that no teacher has ever been asked to sit on the durries even arrangement of chairs were being made easily from the computer Room and the photographs which Smt. Uma Sonal has submitted in support of her appeal it is observed that the photographs pertain to some functions & school level workshops and not with regards to meeting of PRTs with her. Hence, the submissions of photographs in support of submission made by her have no justification.
The fact finding inquiry committee formed by the Principal vide Order dated 09.02.2011 in its report has stated that during the meetings, Smt. Uma Sonal, Head Mistress sits on the chair whereas teachers are made to sit on the Durries. The statements of Primary Teachers taken by the committee during the fact finding enquiry are evident that during meetings the Primary Teachers were made to sit on Durries by Smt.Uma Sonal. Hence, the submission of Smt. Uma Sonal that teachers were not made to sit on Durries during meetings has no justification.
4. The statement dated 27.04.2011 of Shri Amardeep, UDC is evident that on 29.01.2011 Smt. Uma Sonal came to the Principals chamber with him and requested to stop the matter and advised/requested to destroy the memorandums issued to her. Hence, the submission of Smt. Uma Sonal that she has never made any effort to pressurize the Principal by using wrong method, is not justified.
On careful consideration of the appeal dated 26.04.2011 of Smt. Uma Sonal, Head Mistress and considering the facts & circumstances of the disciplinary case and record available in the case, the undersigned has come to the conclusion that penalty imposed by the Disciplinary Authority under Rule 16 of CCS (CCA) Rules, 1965 is commensurate to the misconduct committed by the Appellant. Hence, the undersigned does not find any merit to intervene in the penalty order. Consequently, the penalty of reduction to a lower stage of pay in the same Pay Band by one stage for a period of two years, without cumulative effect and not adversely affecting her pension imposed by the Disciplinary Authority is confirmed in the case and accordingly, the appeal of Smt. Uma Sonal, Head Mistress stands disposed off.
6. Simultaneously, vide order dated 16.05.2011, the Applicant was also transferred from KV AFS, Sarsawa, Sharanpur (UP) to to Kendriya Vidyalaya, Moradabad, UP under Para 7 (e) of new transfer guidelines of Kendriya Vidyalaya Sangathan on administrative grounds with immediate effect.
7. The Applicant challenged the aforesaid transfer order dated 16.05.2011, the order of the Disciplinary Authority dated 14.03.2011 and the Appellate Authority dated 16/18.05.2011 before this Tribunal vide OA No. 2271/2011. While issuing notice in the said case on 24.6.2011, this Tribunal directed the Respondents to maintain status quo as on that date. However, according to the applicant, the Respondents did not comply with the aforesaid directions. She had, therefore, filed a Contempt Petition No.647/2011 in the said OA. However, the submission of the learned counsel appearing on behalf of the alleged contemnors was that the Applicant could have exhausted one more departmental remedy, i.e. filing a revision petition before the highest authority, i.e., Commissioner of Kendriya Vidyalaya Sangathan before approaching this Tribunal. Considering the aforesaid submission, this Tribunal disposed of the Original Application as well as the Contempt Petition vide order dated 30.09.2011 with the direction to the Applicant to make the revision petition to the Commissioner, Kendriya Vidyalaya Sangathan and the Commissioner to consider the same and take appropriate action under intimation to the Applicant. If the decision was not in favour of the Applicant, she was also given liberty to challenge the same through appropriate fresh proceedings. Thereafter, the Applicant made the Revision Petition on 07.10.2011 but it was rejected vide order 23.1.2012. The operative part of the said order reads as under:-
The submission made by Smt. Uma Sonal in her Revision Appeal along with OA and ground raised therein have been considered by the undersigned and observed that:
1. The charge sheet dated 21.02.2011 served upon Smt. Uma Sonal containing Article-I to IV is specific. The misconduct of the Charged Officer and has been mentioned in each Article of charge along with relevant Rules of CCS (Conduct) Rules, 1964 which have been violated by the Charged Officer.
2. As per Schedule-II under Appendix-III, the Principal of the Kendriya Vidyalaya is the Disciplinary Authority for Head Mistress (earlier Group-C post belonging to teaching staff) of the Vidyalaya for initiating disciplinary action under Rule 16 of CCS (CCA) Rules, 1965 for imposing minor penalty. Hence the charge sheet dated 21.02.2011 and penalty order dated 14.03.2011 have been passed by the competent Disciplinary Authority under the rules.
3. Kendriya Vidyalaya Sangathan is an Autonomus Body of Ministry of HRD. The BOG of the Kendriya Vidyalaya Sangathan is the apex body. The Minister of Human Resource Development, in-charge of the Kendriya Vidyalas Scheme, is the Chairman of the Sangathan. The Minister of state in the Ministry of Human Resource Development is the Deputy Chairman and an Officer of the Ministry of Human Resource Development, specified by the Government of India for this purpose, is the Vice Chairman of the Sangathan. Other members are appointed by the Government of India from amongst senior officers of the Ministries of Finance, Defence, Works and Housing, Health and Department of Personnel and Training as well as distinguished educationists including representatives of the Central Board of Secondary Education. National Council of Educational Research and Training and State Governments besides Members of Parliament, Women representatives and Members of Scheduled Castes and Schedule Tribes. The proposals and amendments, if any approved by the BOG of KVS are just and binding to the management and employees of the KVS.
4. An employee who has been penalized under CCS (CCA) Rules, 1965 has an opportunity to prefer his appeal before the Appellate Authority and thereafter to the Revisioning Authority. Further there are Grievance Redressal Officers at RO level and also there is a Chief Grievance Redressal Officer at HQ level. Hence the employee may prefer an appeal to the appropriate authority. The transfer on administrative ground is issued by the KVS HQ, New Delhi after examining the merit of the case.
5. A transfer is not a punishment. As per Para 1 of transfer guidelines of KVS: all employees are liable to be transferred anywhere in India at any point in time and transfer to desired location cannot be claimed as a matter of right. While effecting transfers, the organizational interest shall be given uppermost consideration and that the problems and constraints of employee shall remain subservient. Hence the transfer on administrative grounds is not claimed to be a punishment.
6. The Appellant has neither raised any objection or claim in her reply dated 02.03.2011 to the charge sheet dated 21.02.2011 nor in her appeal dated 26.04.2011 against the penalty order dated 14.03.2011 that no one cannot act as a judge in her own case. Hence raising such objections by the Appellant at this stage are not justified.
7. The Appellate Authority has considered the appeal dated 24.04.2011 of the Appellant and after considering the submissions made by the appellant, facts and circumstances and record available in the case has concluded that the penalty imposed by the Disciplinary Authority under Rule 16 of CCS (CCA) Rules, 1965 commensurate to the misconduct committed by the Appellant and confirmed the penalty imposed by the Disciplinary Authority.
8. The disciplinary action and transfer are two separate issues: As per transfer guidelines of KVS, the employees are liable to be transferred anywhere in India at any point of time.
9. The transfer order dated 16/24.05.2011 has been issued by the KVS HQ. As the transfer order was passed with immediate effect therefore the Principal, KV, AFS, Sarsawa had to relieve the Appellant immediately on its receipt. Hence there is no malafide or bad intentions in compliance or service of said transfer.
10. The Appellant has herself annexed the transfer policy of KVS under Annexure A-11 of OA No.2271/2011 filed by Smt. Uma Sonal. In the same transfer guidelines there is a provision under para 7 (e) as An employee can be transferred from a location if the employees stay has become prejudicial to the interest of the organization. In the said provision the recommendation of the duo Chairman, VMC and the Principal is not required.
11. The penalty order dated 14.03.2011 passed by the Disciplinary Authority and order dated 16/18.05.2011 passed by the Appellate Authority are reasoned and speaking orders.
12. In KVS all employees are liable to be transferred anywhere in India at any point in time and transfer to desired location cannot be claimed as a matter of right. While effecting transfers, the organizational interest shall be given uppermost consideration and that the problems and constraints of employee shall remain subservient.
13. The Appellant was transferred to K.V. Moradabad vide transfer order dated 16/24.05.2011 hence there was no malafide or bad intention of the Principal, K.V., AFS, Sarsawa in informing the authorities about any subsequent orders which has been issued inadvertently which was rectified by the concerned authorities.
14. The salary up to date of relieving from KV, AFS, Sarsawa has been paid in compliance of order of the Tribunal.
15. The directions are being issued to Dy. Commissioner, KVS, Regional Office Dehradun to release the pay and allowances to Smt. Uma Sonal, HM upto this date.
Therefore, I find no reason to interfere with the order of the Disciplinary Authority and Appellate Authority. Accordingly, the appeal dated 07.10.2011 filed by Smt. Uma Sonal is considered in compliance with the CATs order dated 30/09/2011 in OA 2271/2011 and the same is dismissed on merit.
8. According to the Applicant, the Respondent No.4 who is the Principal of the school was pre-determined to transfer her from the school and it was for achieving the said purpose, that the minor penalty proceedings were initiated against her and imposed the penalty of reduction to a lower stage of pay in the same Pay Band by one stage for a period of two years, without cumulative effect and not adversely affecting her pension. She has also stated that the transfer guidelines are always misused by the Principal as all the teachers are at her mercy and if she does not like any teacher, he/she would be transferred any time misusing the power transferring employees on administrative grounds. She has also stated that the purpose of initiating the departmental proceedings against her was to secure her transfer from the present school is quite evident from the fact that even before the Appellate Authority considered her appeal, the Principal ensured that she is transferred from the aforesaid school on administrative grounds. On the other hand, the KVS Circular dated 05.04.2000 states that the proposal for transfer of an employee on administrative ground should be forwarded both by the Principal as well as the Chairman, VMC, but in the present case the Principal alone has recommended her case for transfer in a mala fide manner.
9. She has also stated that her appeal and the review petition were rejected by the Authorities concerned without proper consideration of her submissions but on extraneous considerations. She has contended that when she has submitted her appeal, the Principal got a statement of one Shri Amardeep, UDC recorded on 27.04.2011. The Principal has also in a malafide manner collected the statements of Smt. Abha Tyagi and other Primary School Teachers behind her back and sent it to the Appellate Authority along with her appeal. It was based on those statements the Appellate Authority rejected her appeal. Thereafter, even though she had filed this Original Application on 14.02.2012 and the notice to the Respondents was issued by this Tribunal on 17.02.2012, they purposely delayed in filing their reply even after repeated opportunities were granted to them. Finally, they filed the reply only on 11.09.2012.
10. The learned counsel for the Applicant Shri Yogesh Sharma has also submitted that charge sheet is vague in as much as the misconduct alleged to have been committed has not been specified. In this regard he has relied upon the judgment of the Apex Court in the case of A.K. Kalra Vs. The Project & Equipment Corporation of India Limited AIR 1984 SC 1361. The relevant part of the said judgment is as under:-
Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex-post fact interpretation some incident may not be camouflaged as misconduct.
11. He has also stated that the charge sheet as well as the penalty order has been issued by the Principal who was not the competent authority. The Principals of the KVS have no power or authority to initiate the disciplinary proceedings against a Post Graduate Teacher. According to Schedule-II of the KVS Education Code, the Principal is empowered to initiate minor penalty proceedings only against Primary Teachers. He has also stated that it is a well settled principle of law that no authority below the Appointing Authority can act as a Disciplinary Authority. As far as Post Graduate Teachers are concerned, the Commissioner is the appointing authority of the KVS.
12. The Respondents in their reply have submitted that the Applicant was charge sheeted for her misconduct. The Disciplinary Authority gave her an opportunity to make a representation and accordingly she made a representation in the matter. It was only after due consideration of the representation, the Disciplinary Authority passed the impugned order. The Appellate Authority has also carefully considered her appeal dated 26.04.2011. It was only thereafter, it came to the conclusion that the penalty imposed by the Disciplinary Authority under Rule 16 of the CCS (CCA) Rules, 1965 has commensurated with the misconduct committed. As a result the Appellate Authority did not find it necessary to interfere with the penalty order.
13. Further, according to the Respondents, wherever the Applicant was working, she was creating problems for her superiors. She was issued memos and warnings advising her to improve her behaviour but they did not have the desired effect on her. Further according to them, the tenor and contents of reply to the Memorandum given to her by the Principal was also not in a disciplinary manner. Therefore, the Principal was fully justified in initiating disciplinary proceedings against her and recommending for her transfer to maintain cordial and congenial atmosphere in the school. They have also denied the allegation of mala fide against the Principal made by the Applicant. According to them there was no reason as to why the Principal should pick her up for harassing her, as alleged by her. On the other hand, the fact was that the Applicant, time and again, acted in an utterly disobedient manner. She proceeded on child care leave despite clear instructions of the Principal to leave the keys of the Department before leaving the station and when enquired on return to school, she spoke in a rude manner. She also objected whenever any Primary Teacher was assigned any duty by the Principal. Even when the Principal convened important meetings like one day prior to Republic day, she chose to sit in her department. Despite all her misgivings, the Principal acted very patiently. However, her behaviour in the Principals office on 23rd of December, 2010 was highly objectionable. On 15.03.2011, she left the station without station leave and visited Regional Office without permission. There were several occasions when she totally disregarded her superiors and troubled the subordinates.
14. We have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri S. Rajappa. In our considered view, this is a classic case of misuse of Rule 16 of the CCS (CCA) Rules, 1965 which enables the Disciplinary Authority to impose minor penalties without holding a proper enquiry as envisaged under Rule 14 ibid. The events unfolded in this case clearly justifies the allegation of the Applicant that the very purpose of initiating the minor penalty proceedings against her itself was to secure her transfer from the school on administrative ground. As observed from the facts of this case, there are two aspects in it; the first being the Memorandum of charges issued to the Applicant which culminated in imposition of the penalty upon her followed by the subsequent rejection of her appeal and the revision petition against the same; the second being her transfer from KVS, AFS, Sarsawa to KVS, Moradabad. As the transfer order is the consequential side effect of the order of Disciplinary Authority, both are very much inter-related. As far as the disciplinary proceedings initiated against the Applicant are concerned, the Commissioner of KVS in his order has stated that as per Schedule-II under Appendix-III, the Principal of the Kendriya Vidyalaya is the Disciplinary Authority for Head Mistress (earlier Group-C post belonging to teaching staff) of the Vidyalaya for initiating disciplinary action under Rule 16 of CCS (CCA) Rules, 1965 for imposing minor penalty. The Commissioner did not clarify whether, the Applicant who is a Headmistress and a Post Graduate and the said post is no more a Group C post, the Principal has such power to be her Disciplinary Authority or not. Therefore, the preliminary question to be considered is whether the Principal can be the disciplinary authority of the Headmistress of the School or not. The respondents are avoiding to give a clear reply. However, the legal position is that the departmental proceedings can be initiated by a person lower in scale than the Appointing Authority [Inspector General of Police and Another Vs. Thavasiappan 1996 (2) SCC 145]. But the final order of punishment can only be passed by the Disciplinary Authority which shall not be below the Appointing Authority or by an Authority higher than him [Union of India versus Hasmukhbhai Hirabhai Rana (2006 (12) SCC 373]. Admittedly, the Respondent No.4, the Principal is not the Appointing Authority of the Applicant. However, in this case the Respondent no.4, namely, the Principal has not only initiated the disciplinary proceeding against the Applicant, the same Respondent has also passed the order imposing the penalty upon the applicant.
15. Further, as held by the Apex Court in the case of Mohd. Yunus Khan versus State of UP [2010 (10) SCC 539], if a person is the witness in a disciplinary proceedings, he could neither be the Enquiry Officer nor the authority to pass an order of punishment. Even though the procedure for imposing minor penalties provided under Rule 16 of the CCS (CCA) Rules, 1965, is a summary procedure in contrast to the detailed procedure for imposing major penalties in the manner laid down in sub-rules (3) to (23) of Rule 14 of the CCS (CCA) Rules, 1965, one common requirement in both the procedures is that the Disciplinary Authority shall draw up or caused to be drawn up the substance of imputation or misconduct or misbehaviour on which action is proposed to be taken against Government servant and it shall be informed him in writing. It is also necessary that said substance of imputation or misconduct or misbehaviour shall be approved by the Disciplinary Authority. It is not the case of the Respondents that the impugned Memorandum dated 21.02.2011 containing the Statement of Imputation of Misconduct/Misbehaviour on which order was proposed to be taken Applicant had the approval of the Disciplinary Authority of the Applicant which shall not less than the Appointing Authority or any authority above him.
16. Now it is necessary to have look at the Article of Charges against the Applicant. The first charge is that on 23.12.2010 the Applicant used extremely offending words before the Principal, i.e., the Respondent No.4. Those offending words, according to the said Article of Charge are that the Applicant shouted on the Principal saying: no Primary Teacher attended the meeting nor showed his/her diary because you were not cooperating with me and I am watching the same since November. Whosoever listens to you and you listen to them, get the work done through them. The second Article of Charge is an incident alleged to have happened after almost a month, i.e., on 10.01.2011. On that day she made an allegation against the Principal that on 08.12.2010 she was not available as she had gone to her home when she was very much available in the school. The third Article of Charge is that on 03.09.2010 and on several other occasions, the Applicant subjected the Primary Teachers to a lot of humiliation by making them sit on durries during meeting with PRTs whereas herself sat on the Chair which is absolutely against the dignity of Primary Teacher and behaving with them in a manner not suiting her status as the Headmistress of a reputed organization. The fourth Article of Charge is that on 10.01.2011, the Applicant leveled false allegation on the Principal that the Principal used caste based remarks against her on 23.12.2010 in her office and on 29.01.11 she tendered verbal apology for the same in presence of UDC Sh. Amardeep in Principals office pressurizing the Principal to tear the memorandum issued to her but did not tender a written apology for the same. In the Ist, 2nd and 4th Article of Charges, the Respondent-Principal herself is the complainant, prosecutor and the judge. Then the Principal herself issued the show cause notice; she herself considered it and punished the Applicant. One of the cardinal principle of natural justice is nemo debet esse judex in propria causa (No man shall be judge in his own cause) [Cantonment Executive Officer Vs. Vijay D. Wani 2008 (4) SCC 16). The deciding authority should be impartial and without bias. It has been held by the Supreme Court in Secretary to Government, Transport Department Vs. Mumuswamy 1998 (suppl.) SCC 651 that a pre-deposition to decide for or against a party without proper regard to the true merits of the dispute is bias. Personal bias is one of the three major limps of bias, others being pecuniary bias and official bias. In the present case, the bias of the Respondent-Principal is writ large and it has vitiated the entire proceedings. She was pre-determined to punish the Applicant and in the process she forgot even the basic principles of natural justice.
17. It is also seen that both the Disciplinary Authority as well as the Reviewing Authority were quite unfair in discharging their statutory authority. They were totally biased against Applicant and totally blind to the unfair and illegal actions of the Respondent-Principal. They acted in violation of the principle of natural justice with the sole purpose of punishing and transferring the Applicant. The Disciplinary Authority relied upon the statements of the Primary Teachers including that of Smt. Abha Tyagi, Primary Teacher dated 09.02.2011 recorded during the Fact Finding Enquiry Committee formed by the Principal. The report of Fact Finding Enquiry Committee has never been supplied to the Applicant thereby denied her the reasonable opportunity to defend her case. As the Principal (Disciplinary Authority) thought those documents were not sufficient to convince the Appellate Authority, she had collected statement from one Shri Amardeep, UDC behind her back and sent it to the Appellate Authority along with her appeal. The Appellate Authority readily accepted the said statement to reject the appeal of the Applicant.
18. The mala fide of the Principal (Disciplinary Authority) is further evident from the fact that during the pendency of the aforesaid appeal of the Applicant, under para 7(e) of the new transfer guidelines of KVS, which says An employee can be transferred from a location if the employees stay has become prejudicial to the interest of the organization, she was got transferred to KVS, Muradabad with immediate effect vide order dated 16/24.05.2011 and the Principal relieved her on 28.05.2011 itself vide the relieving order of the same date with a crossed cheque bearing No. 714205 dated 28.05.2011 for Rs. 25,000/- on account of lump-sum transfer grant to meet the TA/DA expenses.
19. The Revision Authority has also been very much unfair to the Applicant. The earlier OA No.2271/2011 filed by the Applicant against the order of the Disciplinary Authority and the Appellate Authority and Contempt Petition No. 647/2011 in the said OA for violation of the aforesaid order of the Tribunal dated 24.06.2011 were disposed of by the Tribunal vide order dated 30.09.2011 on the basis of the submissions made by the learned counsel for the Respondents that the Applicant has not availed the remedy of filing a revision petition. From the said submission, the indication given by the learned counsel was that the Revisionary Authority will consider her case impassionately and will take appropriate decision. Therefore, this Tribunal directed the Applicant to file a Revision Petition and the Applicant promptly made it on 07.10.2011. But the Revision Authority took more than 3 months to dispose of the said Petition itself. Finally, the said authority passed its order dated 23.01.2012 rejecting her petition taking the technical view that the disciplinary action and transfer are two separate issues and as per transfer guidelines of KVS, the employees are liable to be transferred anywhere in India at any point of time. It did not bother to consider any of the infirmities pointed out by the Applicant in her detailed petition.
20. In the above facts and circumstances, we are of the view that the Respondent no.4 usurped its powers in punishing the Applicant under the garb of Rule 16 of the CCS (CCA) Rules, 1965. The Disciplinary and the Appellate Authorities were also callous and indifferent in their approach. It is unfortunate that even the Authority at the level of the Head of the organization itself, namely, the Commissioner, KVS was also not free from bias, partiality and arbitrariness. The system of disciplinary proceedings as envisaged in CSS (CCA) Rules, 1965 is to curb indiscipline in the department and to punish those who misconduct themselves. But the said system shall be in accordance with the prescribed procedure which is in consonance with the principles of natural justice. But the statutory authorities in this case have not only failed to do their duty as per Rule but also violated the rules blatantly.
21. In the aforesaid facts and circumstances of the case, we allow this OA and quash and set aside the impugned Memorandum of Charge dated 21.02.2011, the order of the Disciplinary Authority dated 14.03.2011, order of the Appellate Authority dated 16/18.05.2011, order of the Revisional Authority dated 23.01.2012, interim order dated 16/24.05.2007 and the relieving order dated 28.05.2011. If the Applicant makes request for transfer back to KVS, AFS, Sarsawa or to any other KVS of her choice, the Respondent shall allow the same if there is any vacancy available now or at the earliest time when the vacancy arises. In the aforesaid facts and circumstances, the Applicant is also entitled for cost of Rs.10,000/- (Rupees Ten Thousand only) which shall be paid by the Respondents within two months from the date of receipt of a copy of a copy of this order.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh