Central Administrative Tribunal - Delhi
Mrs. Bimla Ahalawat vs The Vice Chairman on 28 September, 2011
Central Administrative Tribunal Principal Bench OA No.830/2010 New Delhi, this the 28th day of September, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Mrs. Bimla Ahalawat, Working as PGT (Eco.) Kendriya Vidyalaya, NSG Manesar, Gurgaon, (Haryana). Applicant (By advocates : Mrs. Jyoti Singh, Sr. Counsel with Shri Yogesh Sharma and Shri Padma Kumar S.) Versus 1. The Vice Chairman, Kendriya Vidayala Sangathan (KVS), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi. 2. The Commissioner, Kendriya Vidalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi. 3. The Joint Commissioner (Admn.), Kendriya Vidalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi. Respondents . (By Advocates : Mr. S. Kumar and Ms. Yogmaya Agnihotri) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Through the present OA, Smt. Bimla Ahlawat, working as PGT (Economics) with the Kendriya Vidyalaya Sangathan (KVS) the applicant herein, is assailing (i) the order dated 21.1.2008 (Annexure-A1) of the Disciplinary Authority whereby she was imposed the penalty of reduction to lower post of PGT (Eco.) in the ordinary scale of `6500-200-10500 till her retirement with bar for further promotion; (ii) Appellate Authority dated 19.6.2008 (Annexure-A2) wherein the applicants appeal was dismissed and (iii) the order dated 12.3.2009 (Annexure-A3) in which the revision petition of the applicant was rejected by the Revisional Authority. She has prayed to quash the above three orders and to grant her all consequential benefits along with arrears of difference of pay and allowances and the promotion to the post of Principal.
2. The applicant while working as Vice Principal, Kendriya Vidyalaya No.1, Hathik Barkala, Dehradun, misbehaved with Shri R.V.Singh and Smt. A.N. Siddiqui, both Education Officer, KVS Regional Office, Delhi on 30.8.2004 in the Chamber. She exhibited abusive, riotous and disorderly behaviour and failed to show due respect to her superiors. For the above alleged misconduct, a major penalty charge sheet was issused to her vide Memorandum dated 30.11.2004 (Annexure-A6) under Rule 14 CCS (CCA) Rules, 1965. The statement of imputation of misconduct / misbehaviour in support of the only article of charge framed against her reads as follows :-
STATEMENT OF IMPUTATION OF MISCONDUCTS/ MISBEHAVIOR IN SUPPORT OF ARTICLES OF CHARGES FRAMED AGAINST SMT. BIMLA AHLAWAT, VICE PRINCIPAL (UNDER SUSPENSION) KV, NO.1 HBK DEHRADUN.
Article-I That, Smt. Bimla Ahalwat, Vice Principal , Kendriya Vidyalaya, No.1 Hathibarkala Dehradun, while functioning as Vice Principal at Kendriya Vidyalaya, No.1 HB K. Dehradun during the session on 2004-2005, visited K.V. S. Regional Office Delhi on 30.08.2004 at around 1.25 p.m. and misbehaved with Shri Ranvir Singh, Education Officer, & Smt. AN Siddiqui, Education Officer K.V. S. Regional Office Delhi on 30.08.2004 at their chamber.
As per statement dated 30.08.2004 & 11.10.2004 of Shri Ranvir Singh, Education Officer, K.V.S. Regional Office Delhi, on 30.08.2004, at around 1.23 p.m. entered the cabin of Shri Ranvir Singh, Education Officer, K.V.S. Regional Office Delhi in connection with obtaining the approval on local transfer of her ward from Kendriya Vidyalaya, JNU to Kendriya Vidyalaya, Janakpuri in Class-XII. As her ward was admitted in Class-XII in Kendriya Vidyalaya, JNU Campus in July 2004 and the class strength of Kendriya Vidyalaya, Janakpuri was 62, Shri Ranvir Singh, Education Officer enquired about the reason for getting her son transferred to Kendriya Vidyalaya, Janakpuri from Kendriya Vidyalaya, JNU within a short period around two months. Listening the same, Smt. Bimla Ahlawat, shouted and uttered abusive language on Shri Ranvir Singh and K.V.S. authorities by uttering ?? ?? ?? ?? ????? ?????? ?? ???????? ???? ???? ?? ???????? As per statement dated 30.8.2004 & 5.10.2004 of Smt. AN Siddiqui, Education Officer, on hearing the uttering, Smt. AN Siddiqui, Education Officer, KVS, Regional Office Delhi, who was in the nearby chamber came to intervene and to check her misbehaviour. Smt. Bimla Ahlawat, shouted at Smt. Siddiqui, Education Officer, tried to slap her and uttered that ??? ??? ?????? ?? ????? ?????? ???? ?? ? ???? ?? ?? ?? ?? ?? ???? ?? ??? ???? ??? ?? ?? ????? ????? ?? ?????? ?? ??? ??? ?? ? ??? ?? ?? ?? ???????? ?? ??? ???? ?? ???? ???????? ???? ?? ??????? ? ????????, ????? ??? ?? ?? ?? ???????? ?? ??? ???? ?? ?????? ?? ?? ???? ????? ??????? ??? ??? ????? ?????? 5000 ?? ?? ?????? ?????? ?? ?????? ??? ?????????
She has also shouted at Smt. SR Agarwal, Principal, Kendriya Vidyalaya, Paschim Vihar, who was present in the scene and witnessed the incident, vide her statement dated 30.8.2004. The staff of Regional Office, Delhi also heard her uttering and while passing the corridor, she challenged Shri Ranvir Singh by knocking on the table that she will see him and also uttered that ???? ??? ???? ????? ?? ???? ?? ?? ????? ???? ???? ???? ???? ??? ??? This was heard by Shri Rameshwar, LDC Kendriya Vidyalaya, AFS Rajokri, New Dlehi-38, as per his statement dated 30.8.2004. When Shri Ranvir Singh, Education Officer was writing his remark on the local transfer proforma, Smt. Bimla Ahlawat snatched and took away the proforma from him and left his chamber abusing the authorities of K.V.S. The said incident was also witnessed by Shri SN Singh, Superintendent, K.V.S. Regional Office Delhi vide his statement dated 30.8.2004. Thus Smt. Bimla Ahlawat, Vice Principal, exhibited gross moral misconduct as she was abusive and disturbs the peace at K.V.S. Regional Office Delhi, unbecoming of a government servant and failed to show due respect to her superiors.
The said act of Smt. Bimla Ahlawat, Vice Principal, exhibits the conduct of abusive, riotous or disorderly behaviour during office hours, unbecoming of a government servant and failed to show due respect to her superiors in violation of GOI decision No.23 (4) acts and conduct below Rules 3 and Rules 3 (1) (iii) of CCS (Conduct) Rules 1964, and Article 59 (22) of Education Code of Kendriya Vidyalayas, (2004 edition) as extended for the employees of Kendriya Vidyalayas.
3. It was the case of the applicant that the above being based on nine relied on documents and statement of five witnesses, she submitted her representation dated 10.12.2004 requesting the competent authority to supply her those statements and documents. She received copy of the documents on 9.2.2005 but it was her case that the copies of the statements were not supplied to her. She represented on 19.2.2005 against the charge raising some objections and sought 10 days time. The Disciplinary Authority appointed the Inquiry Officer (IO) and the Presenting Officer (PO) on 6.4.2005. The applicant desired to engage Shri R.G. Rangi as the Defence Assistant but was not agreed to by the IO on the ground that he was an advocate . Therefore, she engaged Shri Jagat Singh as her Defence Assistant. It was further averred that the IO and PO were changed while the enquiry was progressing. The IO conducted enquiry, examined five prosecution witnesses and referred to nine documentary exhibits. The applicant did not produce defence witnesses and defence documents in her support, though, the IO granted special permission to the Defence Assistant to visit Delhi on official duty to prepare list of defence documents and witnesses in consultation with the applicant. She was granted one more opportunity but did not submit the list. The IO submitted his report dated 23.04.2007 to the Disciplinary Authority which was forwarded to the applicant vide Memorandum dated 30.05.2007. The applicant submitted her response on the IOs findings. The Disciplinary Authority remitted the case back to the IO with the direction to apply his mind in evaluating the inquiry report in the light of her representation. The IO submitted the inquiry report dated 28.09.2007 where he held the charge as proved in following terms:-
On evaluation of the Statements recorded of SW-1, SW-2, SW-3, SW-4 and SW-5 in examination-in-chief and also taking into account of their statements deposed in cross-examination, the following points are emerged:-
All the witnesses SW-1, SW-2, SW-3, SW-4 and SW-5 have endorsed their statements recorded on 30.8.2004 on the day of the incident as true. The CO and her DA made their best efforts in cross examination to confuse the state witnesses, but could not be successful. All the witnesses have boldly given the statements which were given by them earlier as per Exhibits S-1 to S-7. As such, by the oral evidence also the Article of charge as per imputations in Annexure-II of the charge-sheet has been endorsed as true by the Five Witnesses word-by-word. CONCLUSION:-
On the basis of documentary evidence Exhibits No.S-1 to S-9 and as per oral evidence on deposition of Five witnesses during the course of Inquiry recorded heir statements of SW-1 to SW-5 the charge of misconduct and misbehavior as per imputations (Annexure-II) of the charge sheet has been fully proved beyond doubt.
Accordingly the violation of Article 59 (22) of the Education Code i.e., Code of Conduct for teachers has been established, as the C.O-Smt. Bimla Ahlawat did not show due respect to the superior authority.
Thus, the C.O violated article 3(I) (iii) of CCS (Conduct) Rules and acted in a manner unbecoming of KVS Employee. Particularly the violation of G.I.O. Decision No.23 (4) (7) and (2) below Rule 3 (1) (iii) of CCS (Conduct) Rules 1964 HAS BEEN ESTABLISHED for abusing the officers, while on duty.
4. The applicant, on receipt of the copy of the Inquiry Report vide Memorandum dated 23.10.2007, submitted her written statement. The applicant has taken as many as seven grounds in opposing the findings in the enquiry report. Those are (i) there was no entry in the security visitors register about the timing which was reported by the Presenting Officer as 12:25 whereas the charge memo revealed the time as 1:25; (ii) the applicant has claimed that she did not come to Delhi Region and at that point of time her address was Ber Sarai and has not changed the residence. It has been stated that there was no question of transferring her son to Janakpuri and there was no document to show that Ranbir Singh was granted any admission work; (iii) she was not provided with the Rules of local transport of children and no prove was brought in to show that such work was assigned to Shri R. V. Singh; (iv) it is stated that she demanded that Mrs. Siddiqui, Education Officer, Mr. R. V. Singh, Education Officer and one other witness should be examined but the enquiry was conducted ex-parte without applicant being present and she was not given opportunity to examine the said witnesses. (v) The charge sheet does not reveal what Shri S. R. Agarwal, Principal, Kendriya Vidyalaya, Paschim Vihar and Shri S. N. Singh, Superintendent and Shri Rameshwar, LDC were doing in Delhi Regional Office. (vi) the Inquiry Officer did not apply with the direction of the Disciplinary Authority to prepare the Inquiry Report in accordance with Rule 14 (23) of CCS (CCA) Rules 1965. (vii) Inquiry Officer has not given the logical argument how the time of each and every witness differ which varied from five minutes to 3.5hours about the alleged incident. On receipt of applicants representation on the IOs report, the same was examined by the Disciplinary Authority and held the charge as proved and imposed on her the penalty of reduction to lower post of PGT (Economics) in the ordinary scale of `6500-200-10500 till her retirement with a bar for further promotion and in the said order dated 21.01.2008, the Disciplinary Authority also treated the period of suspension as not on duty. Feeling aggrieved by the order of the Disciplinary Authority dated 21.01.2008, she presented an appeal dated 15.02.2008 to the Appellate Authority. She has raised in her appeal as many as twelve grounds which were examined in seriatim by the Appellate Authority and dismissed the petition on merits. Aggrieved by the said order of the Appellate Authority dated 19.06.2008, the applicant presented a Review Petition dated 1.08.2008 which was examined by the Revisional Authority in detail and ultimately the Revision Petition was rejected vide order dated 12.03.2009. Thus, the applicant is before the Tribunal in the present OA.
5. Narrating the background of the case and highlighting some of the above grounds, Mrs. Jyoti Singh, learned Senior Counsel assisted by Shri Yogesh Sharma and Shri Padma Kumar S., learned counsel for the applicant placed before us the following contentions: (i) the disciplinary proceedings proceeded with the inquiry on the alleged misconduct without taking into account the relevant facts namely the applicant did not visit Delhi Region on the date of alleged incident and the authorities concerned failed to consider independent evidence to prove the presence of the applicant at the scene of alleged offence. So much so that the applicants name does not exist in the visitors diary maintained by the Security personnel at the gate of KVS (RO) Delhi and KV-JNU. Further, there is discrepancy in the time of incident as reported by the witnesses. (ii) Another set of contentions raised by Mrs. Jyoti Singh relate to the violation of principle of natural justice. The applicant was initially not allowed to engage her preferred Defence Assistant, she was not allowed to examine defence witnesses, and she was not supplied with the relied on documents and statements of witnesses along with the charge sheet. It is contended that the inquiry was conducted in a biased manner. (iii) Further, Mrs. Singh would submit that the Inquiry Officer cross examined the witnesses which is against the prescribed procedure and violates the principles of natural justice as the IO cannot act as Judge as well as prosecutor. Hence, Mrs. Singh urges that the entire inquiry having been vitiated should be treated as illegal. (iv) Another set of arguments raised by Mrs. Singh relates to punishment imposed on the applicant is shockingly disproportionate to the gravity of the alleged charges and even proved misconduct. Referring to the penalty imposed on the applicant she submits that the penalty has two distinct punishments namely (i) permanently reducing the rank of the applicant from higher grade (Vice Principal) to a lower grade PGT (Economics) and (ii) permanent bar of the applicant for promotion till her retirement. Her contention is that for one alleged misconduct the applicant cannot be imposed two different and distinct punishments. As such, the punishment is illegal and colourable exercise of executive power. In this regard, Mrs. Singh placed her reliance on the judgment of this Tribunal in N. C. Jena versus Union of India and Others [2005 (1) ATJ 258] and submitted that the multifarious punishment imposed on the applicant for one alleged misconduct would not be legally sustainable.
6. On receipt of notice the respondents have entered appearance and submitted reply affidavit on 30th August, 2010 through Mrs. Yogmaya Agnihotri, learned Counsel. She would contend that the applicant committed a misconduct by misbehaving with the senior officers on 30.08.2004, as a result of which, she was charge sheeted vide Charge Memo dated 30.11.2004 and after proper enquiry following the principles of natural justice the penalty has been imposed on the applicant. Initially he was placed under suspension vide order dated 31.08.2004. With regard to engagement of Defence Assistant, it is contended that as per the Rules, the Inquiry Officer permitted the correct Defence Assistant and did not allow an Advocate which was not admissible as per the Rules. During the enquiry, the IO gave all the copies of relevant documents and the applicant verified those documents and the documents submitted by the complainant and other eye witnesses. The applicant was afforded full opportunity of personal hearing and, as such, no error or perversity could be attributed to the penalty order imposed on the applicant. It is further stated that the applicant complained against the Inquiry Officer attributing bias which was considered by the concerned authority and rejected, considering the complaints based on surmises and conjunctures. Further with regard to non-supply of defence documents or additional documents required by the applicant, it was contended that the Inquiry Officer rightly rejected the irrelevant and vague documents which would not support either the case of the prosecution or defence. It is submitted that the applicant wanted to produce only her close relatives as defence witnesses which was not allowed by the IO as their evidence would not be reliable and no independent witnesses could be produced by the applicant. With regard to denial of cross examination of SW-3, SW-4 & SW-5, it is stated that the applicant has cross examined them on 5.01.2007 but for the cross examination of SW-1 & SW-2 though scheduled on 9.02.2007 but the applicant refused to cross examine them on the ground that the applicant was not prepared for the same. She was given the opportunity again to cross examination SW-1 and SW-2 but she declined to do so and as such the IO conducted the enquiry without her cross examining them. In her representation dated 4.07.2007, the applicant has raised certain errors for which the Disciplinary Authority has remitted back IOs report for evaluating the report keeping in mind the errors indicated by her. The Inquiry Officer submitted a fresh report in a well documented and detailed manner. In respect of the contention advanced by the applicants counsel on the disproportionate penalty imposed on her by the Disciplinary Authority, the counsel for the respondent submitted that the major penalty order of reduction to the lower post of PGT (Economics) in the ordinary scale of pay `6500-200-10500 till her retirement with a bar on further promotion was considered proportionate as the order relied on the judgment of the Honble Supreme Court judgment in Mahindra and Mahindra Ltd. versus N. N. Narawade and others [(2005)-3-SCC-134], which has been cited as relevant judgment in the Disciplinary Authoritys order, as per which even the dismissal of the government employees for use of abusive language has been held as proportionate. Therefore, the contention of the applicants counsel that the punishment imposed is disproportionate needs to be rejected. In view of the above contentions, Mrs. Yogmaya Agnihotri would submit that the OA is liable to be dismissed.
7. Having heard the above contentions of the rival parties, with the assistance of their counsel we perused the pleadings and relied on judgments.
8. Before we delve into the matters revealed from the IOs report and the orders of the authorities concerned, we may refer to the settled position in law on the role of this Tribunal in the matters of disciplinary proceedings. It is trite that this Tribunal can examine the evidence to find out whether there is any evidence against the Applicant in the case. We note that our power is limited. We went through many judgments of Honourable Supreme Court of India, viz., B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Kuldeep Singh Versus Commissioner of Police and others [1999(2) SCC 10]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The principles and law set in the above judgments of Honourable Apex Court guided us in the instant OA. Generally, the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. On certain grounds only the Tribunal can scrutinize the relevance or irrelevance of facts; available or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle, probability of preponderance doctrine and the like. Some of the guiding principles, we kept in our mind while deciding the controversies in the present OA, are the following: (i) Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which the decision is taken. (ii) The Tribunal can interfere with the decision of the Disciplinary / Appellate / Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or penalty imposed was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards. (iii) The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from.
9. The basic requirement of a departmental enquiry in a disciplinary case must conform to certain procedures and standards. One standard is that the charged officer must be given fair and reasonable opportunities to defend. Second standard is that the Inquiry Officer holding the inquiry against the charged officer must discharge duties without bias and vindictiveness, must conduct in a dispassionate and objective manner not only at the enquiry stage but in analyzing evidence received during the inquiry and consider relevant materials on record and ignore irrelevant and extraneous materials while drawing up the findings and conclusion so arrived must rest on the available evidence. The conclusion must not be based on presumptions, assumptions, surmises and mis-reading of evidence. The enquiry procedure expressly laid down in CCS (CCA) Rules should be adhered to. In this context, we drew our guidance from the judgments in the case of Anil Kumar Das versus Senior Superintendent of Post Offices [AIR 1969 Assam 99] and S. D. Bhardwaj versus Union of India [1983-1-SLR-HP-32]. We examined the present case in the background of the prescribed procedure and standards and noticed that examples of favoured Defence Assistant not allowed as he was an Advocate; certain documents copies and witnesses statements not enclosed to the charge sheet; and rejecting her relatives as defence witnesses had been cited as violation of principles of natural justice and thereby vitiating the inquiry proceeding. We find from the records in the case that justifiable reasons have been given by the IO and the concerned authorities. It is not necessary to extract those details. Suffice to say that the authorities concerned have followed the standard and procedures and inquiry has not been vitiated on those counts.
10. One of the pleas taken by the applicant in the OA and in her written submission and the IOs report is that she has not visited the KVS ROs office on the date of the alleged incident as there is no documentary evidence to the effect about her visit. As per the charge sheet the applicant visited KVS (DR) on 30.08.2004 at 1.25pm. PO in his written brief stated that she came at 12.25pm and it is stated by the applicant that there has been no entry in the security register. Thus, it has been contended that due to difference in time the case should be construed as false one. On a close scrutiny of IOs report, we note that the statements of the witnesses have not only proved her presence but have corroborated the happening of the incident. Thus, the contention that she did not visit ROs office at Delhi and, therefore, she did not commit the alleged misconduct could not be borne out from the evidence available on record.
11. Timing of the alleged incident as stated by the applicant varied from the witness to witness and as such it was contended that the veracity of such evidence being doubtful, the applicant should not be made to suffer. We note from the IOs report that the witnesses have individually stated about the incident which took place during a period of time. The evidence of the witnesses cannot be discarded just because timing of the incident has been reported to be
12. An important issue raised by the Senior Counsel for the applicant that the penalty imposed on the applicant is shockingly disproportionate to the proved misconduct. We may refer to this aspect here. The relevant part of Disciplinary Authoritys order dated 21.01.2008 is reproduced below:-
11. The undersigned being the Disciplinary Authority after going through the case file, Inquiry Report & submission of the Charged Officer, has observed that the misconduct on the part of Charged Officer has been established. Thus, Smt. Bimla Ahlawat exhibited the conduct of abusive, disorderly behaviour during office hours, which is certainly unbecoming of a KV employee and failed to show due respect to her superiors. This act of her is serious enough and in violation of GOI decision No.23(4) acts and conduct below Rule 3 and Rules 3 (1) (iii) of the CCS (Conduct) Rules 1964 and article 59 (22) of education code for KVs. Smt. Ahlawat deserve a major penalty. The Apex Court has also held, in Mahindra Ltd. Vs. N. B. Narawade [(2005) Supreme Court cases, 134] that dismissal of a workman for use of abusive language cannot be held to be disproportionate. Thus, imposition of penalty of reduction to lower post of P.G.T. (Eco). In the ordinary scale of Rs.6500-200-10500 till her retirement would meet the end of justice.
Now, therefore, the undersigned hereby imposes the penalty of reduction to lower post of PGT (Eco.) in the ordinary scale of Rs.6500-200-10500/- till her retirement with a bar for further promotion, upon Smt. Bimla Ahlawat, Vice Principal with immediate effect. On reduction, Smt. BImla Ahlawat is now posted at Kendriya Vidyalaya Maneswar as PGT (Economics) and directed to report for duties immediately. The period during which she remained under suspension shall be treated as non duty.
13. The part of the order of the Appellate Authority dated 19.06.2008 rejecting her appeal reads as follows:_ (xii) The Apex Court has also held, in Mahindra Ltd. Vs. N. B. Narawade [(2005) Supreme Court case, 134] that dismissal of a workman for use of abusive language cannot be held to be disproportionate. Thus, the penalty of reduction to lower post of P.G.T. (Eco) in the ordinary scale of Rs.6500-200-10500 till her retirement is commendsurate with the proven misconduct on the part of the appellant.
7. Therefore, this appeal petition is dismissed on merit. It must be noted that the order of the Appellate Authority is silent on two other aspects of the penalty order passed by the Disciplinary Authority viz. (i)bar for further promotion and (ii) the period of suspension to be treated as non-duty.
14. The respondents and even the Disciplinary and Appellate Authorities have relied on the judgment of Hon'ble Apex Court in N.B. Narawade's case (supra) in support of the punishment imposed on the applicant on the ground that dismissal from service has not been considered disproportionate to the proved misconduct whereas in the applicant's case punishment is less than the dissmissal. We may refer to the facts of N.B. Narawade's case (supra) for appropriate appreciation of whether the arguements of the respondents are acceptable. The basic facts revealed that the respondent workman was initially appointed on temporary basis from May, 1978 and was made permanent on 9.8.1981 and was designated as a fitter and an incident which took place on 7.11.1991 wherein it was alleged that the workman used abusive and filthy language against his supervisor, an inquiry was instituted against him and the Inquiry Officer found him guilty of misconduct and on the basis of recommendation his service was terminated. He moved the Labour Court against the said order. The Labour Court by its order dated 5.9.1996 held that the charge-sheet issued to the workman was vague. Hence, a fresh charge-sheet was issued and a fresh inquiry was initiated and the Inquiry Officer came to the conclusion that the alleged misconduct was proved and the workman was dismissed from the service. In the second round, the Labour Court came to the conclusion that from the evidence of witnesses of the company it is clear that the workman had abused his superior on 22nd November, 1991 in filthy language without any provocation. However, in regard to punishment of dismissal imposed on the workman the Labour Court came to the conclusion that the same was harsh and improper hence, deserved to be set aside and substituted the said punishment by directing the respondent's reinstatement with continuity of service but with 2/3rd back wages w.e.f. 5.3.1993. Being aggrieved by the said modification of the punishment the appellant preferred a writ petition before the Single Judge of the High Court of Bombay who by a short order dismissed the same, though held that the misconduct alleged against the workman had been proved. Against the said order the appellant preferred Writ Appeal before the Division bench of the High Court wherein considering the various judgments cited before it came to the conclusion that the power of the Labour Court under Section 11 A in the Industrial Disputes Act or the equivalent provisions of the said Act were not restricted and the court was vested with the jurisdiction to alter the punishment imposed on a workman by the management, if in its opinion, the court was of the view that the punishment was disproportionate with the misconduct proved against the workman and finally held held thus: "It is true that the respondent-workman has been found guilty of the misconduct of using foul, intemperate and abusive language, but this would not in our opinion, be sufficient to warrant the punishment of dismissal......Since the misconduct has been proved and in view of the nature of the past service record, we are of the opinion that depriving the workman of 60% of his back wages would be a punishment commensurate with his past record and the misconduct proved against him. Dismissal from service will be too harsh considering the totality of service, gravity of misconduct and 15 years of service put in by him." On the above basis the Division Bench also dismissed the appeal of the Management. Hence, Management came before the Hon'ble Supreme Court in appeal. While arguing on behalf of the Management Mr. Dushyant A. Dave, learned Senior counsel submitted that on facts the workman had been charge sheeted several times earlier and on every such case of misconduct, Management took a lenient view and imposed minor punishments. He pointed out from the records that in one incident that took place on 6th September, 1988 the workman had assaulted his co-worker by name Shri G.I. Puranik with a galvanized pipe weighing about 2 kg. causing grievous injury and in such a situation, he was only punished with suspension of 4 days. According to the learned counsel the incident of 22.11.1991 was unprovoked incident when his supervisor asked him to do a particular job which was entrusted to him, he allegedly told the supervisor to call the Engineer-in-charge so that he could talk to him rather than the supervisor and when the Engineer came and requested him to carry on with the work he abused the supervisor in a very filthy language in the presence of his subordinates and later on when the Engineer went back to his cabin he followed him to the cabin and again abused him in the presence of a member of the Labour Union in similar language and even threatened him which act of the workman, according to the learned counsel, is subversive of discipline and good behaviour within the premises of the company and would undermine the discipline in the industry. The Hon'ble Apex Court took note that "the learned counsel for the appellant has pointed out from the records that the workman was charge-sheeted more than once on earlier occasions and inspite of the gravity of the offence he was dealt with leniently. He pointed out that in one such earlier instance this workman had assaulted his co-worker with a galvanized pipe causing grievous injury, even then he was punished with 4 days suspension only which according to the learned counsel clearly shows that the Management- appellant is not being vindictive." Taking into consideration the over all facts the Hon'ble Apex Court disagreeing with three courts allowed appeal and upheld the order of dismissal respondent-workman from service. It is noted that facts in the above case is different in the sense that when the workman used abusive language against a superior officer, that too not once but twice, in presence of subordinates and earlier he assaulted co-worker the dismissal was found to be justified. In the instant OA, we are having a case where the applicant using abusive language is but once and she has no preveous misconduct of similar nature. This is the first incident in case of the applicant. In view of the dissimilarity in facts to some extent we would like to distinguish the judgment in N.B. Narawade's case (supra).
15. In view of the above, we may refer to the well settled position of law in various judgments of Honble Supreme Court in respect of doctrine of proportionality in service jurisprudence.
16. In Chairman-Cum-Managing Director Coal India Ltd. Vs. Mukul Kumar Choudhuri [AIR-2010-SC-75] Hon'ble Supreme Court scanned the doctrine of proportionality as interpreted by it in the context of disciplinary cases. While allowing the appeals in this case, Hon'ble Supreme Court in respect of doctrine of proportionality observed as follows:
"26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations."
17. The Honourable Apex Court observed in Federation of Indian Chambers of Commerce and Industry Versus Workmen [(1972) 1 SCC 40], where the allegation against the employee of the Federation was that he issued legal notices to the Federation and to the International Chamber of Commerce which brought discredit to the Federation--the employer. Domestic inquiry was held against the employee and his services were terminated. The punishment was held to be disproportionate to the misconduct alleged and established. The Honble Supreme Court observed that: "Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation."
18. In Ranjit Thakur versus Union of India [AIR 1987 SC 2386] the Hon'ble Apex Court interfered with the punishment only after coming to the conclusion that the punishment was in defiance of logic and was shocking. It was also described as perverse and irrational. A view was taken in Indian Oil Corpn. Ltd. Versus Ashok Kumar Arora [(1997) 3 SCC 72] by the Hon'ble Apex Court that the Court would not intervene unless the punishment was wholly disproportionate, and unless the court/tribunal opined in its secondary role, that the administrator was, on the material before him, irrational, the punishment could not be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi versus Union of India and Ors. (1995 [6] SCC 749) that the Court might -- to shorten litigation -- think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority.
19. In Union of India and Another versus G. Ganayutham [AIR 1997 SC 3387], considered the proportionality in the administrative law and summed up the principles of proportionality thus :
"(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the executive amongst the various alternatives open to him. nor could the court substitute its decision to that of the administrator. (2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational - in the sense that it was in outrageous defiance of logic or moral standards. .....in this context, the courts / tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority...."
In the case of Management of Coimbatore District Central Cooperative Bank Versus Coimbatore District Central Cooperative Bank Employees Assn. and Another.[2007 STPL(LE) 38314 SC] the Hon'ble Supreme court considered the doctrine of proportionality and held that the doctrine of proportionality had evolved over the years to control possible abuse of discretionary powers by various administrative authorities. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. In the above judgment, "Proportionality" has been defined as a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. It is further held that the court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by the executive are wholly out of proportion to the relevant misconduct. The doctrine has its genesis in the field of administrative law. The doctrine of proportionality has been very allegorically described viz. there can be no "pick and choose", selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a "sledgehammer to crack a nut", and as has been said many a time; "where paring knife suffices, battle axe is precluded".
20. In the background of the well settled position in law on the doctrine of proportionality, we would refer to the facts of the present case to find out whether the penalty imposed on the applicant is proportionate to the proved misconduct or not? The misconduct which has been held as proved has been embodied in the statement of imputation which we have already extracted in Para 2 within. This would indicate that the applicants misbehaviour, abuse and shouting was triggered in connection with obtaining of approval on legal transfer of her son who was studying in Class-XII from Kendriya Vidyalaya, JNU to Kendriya Vidyalaya Janak Puri. When she was enquired to find out the reason for getting her son transferred from one Kendriya Vidyalaya (KV) to the other within a short period of about two months, the applicant started shouting and uttered abusive language against Shri Ranvir Singh, the Education Officer. The enquiry from the Education Officer was not proactive but inquisitive. Such enquiry by the Education Officer could have been answered in a normal manner by which her request for her sons transfer to KV Janak Puri would have been properly attended to. Subsequently, when Mrs. Siddiqui, Education Officer of KVS Regional Office, Delhi heard the shouting and tried to intervene, she was also abused and shouted with threatening voice. She has abused 3 of them, namely, Ranvir Singh, Education Officer, Smt. Siddiqui, Education Officer and Smt. S. R. Agarwal, Principal, Kendriya Vidyalaya, Paschim Vihar. All these elements in the charge memo have been held as proved by the IO on the basis of evidence received from witnesses and available documentary evidences, more specifically, the statements of witnesses. It is noted that the applicant has no past record of using abusive language against her senior officers. The incident took place on 30.11.2004 and the applicant who joined as PGT (Economics) in 1983, has already put in 21 years of service and has about a decade of service left when the incident took place in November, 2004. On the above proved charges, the applicant was imposed the penalty of reduction to lower post of PGT (Economics) from the post of Vice Principal which she was holding on the date of incident till her retirement with bar for further promotion. The period which she spent under suspension was also treated as not spent on duty. The Appellate Authority while considering her appeal has indicated in his order, as stated within, that while dismissing the appeal he has upheld the penalty of reduction to lower post of PGT (Economics) in the ordinary scale of `6500-200-10500 till her retirement which is commensurate with the proved misconduct. Though the Appellate Authority has not specifically mentioned about barring of her promotion till retirement but as the penalty would be running right up to the date of her retirement, as per the extant rules, the applicant would of course suffer the debarment for consideration of promotion till her retirement. It is noted that the Appellate Authority has not passed any order where he has upheld the decision of the Disciplinary Authority for treating the suspension period as not spent on duty. But as the appeal has been dismissed, it is understood that he has concurred with the order passed by the Disciplinary Authority in treating the suspension period as not spent on duty. Be that as it may, the officer of the applicants rank who has already put in 21 years of service and has reached the level of Vice Principal right from PGT (Economics) in the year 1983 has passed through one more tier of promotion i.e. Selection Grade PGT (Economics) to reach the position of Vice Principal. By the imposition of the punishment, the applicant has slipped back to her position of starting her career as PGT (Economics) i.e. she has been taken 21 years back to the year of her joining post of the PGT (Economics) and the same position would continue till her retirement. This means that the applicant would continue at the starting of the scale of pay as PGT (Economics) right through which, in our considered opinion, is irrational and illogical. On a further scrutiny of the order of punishment, we find that the penalty inflicted is out of proportion and completely defiance of logic. In our considered opinion, the penalty of putting the applicant in the level of PGT (Economics) up to her retirement is absolutely unreasonable, unfair and arbitrary. This only shows some sort of vindictiveness. The Disciplinary and Appellate Authorities while exercising quasi judicial powers are the authorities exercising discretionary power. Their approach should be to reform the charged officer with appropriate punishment so that she could turn a new leaf in future service career. We find there has not been proper consideration of the punishments imposed on the applicant before taking a decision on the quantum of punishment. Though, the decision making process has not been flawed but the decision itself, in our considered view, is shocking to the conscience of the Tribunal. As we have stated within the Honble Supreme Court has held that it is not permissible to use a sledgehammer to crack a nut or to use battle axe where paring knife would suffice. Thus, the punishment imposed on the applicant should have been such that it would given proper impact on her to improve herself to render better behaviour in the future, rather than to impose penalty which would demoralize the officer in the rank of Vice Principal. We, therefore, are of the opinion that the penalty imposed on the applicant is disproportionate to the proved misconduct and is liable to be quashed and set aside. We order accordingly.
21. Having considered the totality of facts and circumstances of the case and guided by the well settled legal position on the issues, we find that the penalty inflicted on the applicant is grossly disproportionate and shocking, for the proved misconduct. We are also of the opinion that penalty is very harsh. We, therefore, quash and set aside the orders of the Disciplinary Authority and Appellate Authority dated 21.01.2008 and 19.06.2008 respectively and remit the matter back to the Disciplinary Authority for reconsideration on the question of quantum of punishment and pass order within a period of three months from the date of receipt of the copy of this order. It goes without saying that the order whenever passed by the Disciplinary Authority would relate back to 21.1.2008 when the order was passed by the said authority.
22. Resultantly, the Original Application is partly allowed in terms of our above orders, directions and observations leaving the parties to meet their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/