1. Challenge is made to penalty of dismissal inflicted vide order dated 5.11.2002 as upheld vide appellate and revisional authorities' orders dated 29.9.2003 and 23.3.2006 with all consequential benefits including reinstatement, costs, etc.
2. Applicant was initially appointed to the post of Audit Assistant in the year 1984, re-designated as Assistant Superintendent. He was proceeded for certain misconducts vide charge-Memorandum dated 16.5.2000, which contained six articles of charges, namely: Article-I During 1999-2000 remained absent from duty willfully.
Moreover on some occasions Shri Sharma putting his signature in the staff attendance register left the office without any information.
Article-II During 1999-2000 failed to perform his assigned duties willfully.
Article-III During 1999-2000 on 15.10.99 abused the Administrative Officer during morning hours and also to Education Officer Shri M.S. Chauhan and Shri R.K. Nair, Superintendent (Admn) at about 1730 hrs.
in the presence of staff members of Regional Office.
Article-IV During 1999-2000 and 2000-2001 made false allegation against the Assistant Commissioner on 7.4.2000 to the effect that Assistant Commissioner always threatening him with the consequences in case applicant does not withdraw the case filed in CAT, Jabalpur, without any documentary evidence.
Article-V During 1999-2000 while submitting his leave applications did not give his correct residential address and put the Sangathan in an embarrassing position.
Article-VI During 1999 he misused the salary certificate issued in his favour on 25.6.99 by the Assistant Commissioner, KVS, Regional Office, Jabalpur while getting loan from LIC Housing Finance Ltd., Bareilly without informing the facts to his head of office/Appointing Authority.
3. As aforesaid charges were denied, an oral enquiry was held and E.O.submitted a detailed report holding the aforesaid charges proved. The said enquiry report was supplied to him vide Memorandum dated 26/28.4.2002 to submit a representation, if any, before taking a final decision. Instead of submitting the reply, applicant sought one month's time to collect the relevant informations and documents from Jhunjhunu vide representation dated 25.5.2002. He was again directed to submit his representation latest by 25.6.2002 vide Memorandum dated 4/5.6.2002 but on the pretext of availing EL, did not submit any reply and ultimately submitted a representation dated 9.8.2002. On consideration of said representation as well as findings of EO, the disciplinary authority after holding that he committed grave misconduct and acted unbecoming of an employee of KVS imposed the punishment of dismissal vide order dated 5.10.2002. As statutory appeal dated 19.12.2002 preferred against the aforesaid penalty remained pending, he preferred OA No. 463/2003 before Jabalpur Bench, which was disposed of vide order dated 11.07.2003 with direction to Appellate Authority to decide the same. Accordingly, the said appeal was considered and rejected after affording an opportunity of personal hearing on 26.9.2003, vide order dated 29.9.2003. He also preferred a revision petition which remain pending and, therefore, preferred OA 317/2005 before this Tribunal. The said OA was disposed of vide order dated 11.2.2005 with direction to respondents to consider the said revision petition. Pursuant thereto Vice-Chairman and Revisioning Authority, KVS passed order dated 23.3.2006 and confirmed the said penalty holding that no Organization can function efficiently if it tolerates employees who do not perform assigned duties but indulge in insubordination, willful absence from duty and falsehood and abused their superiors.
4. The aforesaid orders are impugned and challenged in present proceedings. The applicant, who appears in person, raised following contentions: As noticed herein above, the first article of charge relates to alleged absent from duty, termed as willful. Vide second article of charge, it was alleged that applicant who was detailed to accompany with the Accounts and Inspecting Officer to conduct internal audit of KVS, Korba & Balko between 17.11.1999 & 29.11.1999 though withdrew TA&DA, neither undertook his journey nor performed duties assigned to him. Applicant pointed out that absence from duty is related to 10th, 11.4.2000 & restricted holiday on 13.4.2000. In fact, he had submitted an application dated NIL for sanction of CL on 10&11.4.2000 as well as restricted holiday on 13.4.2000 with necessary permission to leave the station. Since vide order dated 24.10.2006, Assistant Commissioner (Jabalpur) ordered that above cited spells of absence be treated 'as the leave of kind due', the said charge cannot be allowed to stand & is deemed dropped.
As far as non-performing of assigned duties from 17 to 29.11.99 is concerned, since he had to attend the Court case before this Tribunal, Jabalpur Bench, as well as CBI, Lucknow, he was prevented to discharge his duties. Therefore, it cannot be said that his absence was willful, deliberate or intentional. Drawing our attention to cause-list of Tribunal dated 19.11.1999 (Annexure A, page 21) it was pointed out that OA 421/99 filed by him was listed before it. Similarly, he had a date to appear before CBI Court, Lucknow on 29.11.99. Since he was not appearing before the CBI Court, strict view had been taken by the said Court and warrants were issued against him. However, on specific undertaking given that he would attend each and every date in future, warrants were cancelled on 5.2.2000. Our attention also drawn to establish this contention to his Advocate's communication dated 17.2.2002 (page 53). He indeed appeared on 5.2.2002 before the learned Special Judge, Anti Corruption (Central), Lucknow. Our attention was also drawn to order sheet of said date at pages 56 & 57. In view of above, it was contended that if he would have proceeded to Korba & Balko on audit, as directed, he would not have been able to attend the court proceedings which were equally important & necessary. In the circumstances, it was contended that charges leveled were not justified and he should have been exonerated of said charges.
For 3rd article of charge relating to abusing Administrative Officer and Education Officer as well as Superintendent (Administration), it was contended that though alleged incident as per Charge Memorandum was stated to be of 15.10.1999, no memorandum seeking his explanation was ever issued prior to issuance of impugned Charge Memorandum dated 16.5.2000. In fact, 15.10.1999 was a holiday. The Administrative Officer had been on tour on 15.10.1999, contended the applicant with reference to note dated 15.10.1999 (page 25). It was suggested that said charge was baseless and concocted, besides contrary to available records.
4th Article of charge deals with false allegation made against Assistant Commissioner threatening him of dire consequences unless he withdraw the case filed before Jabalpur Bench of the Tribunal. It was stated that said Assistant Commissioner later became the Deputy Commissioner (Administration) and retired only few days ago. The Presenting Officer as well as EO were working within his administrative control and, therefore, it was not expected that said officials would be acting fairly and justly.
For 5th Article of Charge relating to non-submission of correct residential address on the leave applications etc, it was pointed out that he had disclosed his correct address available from time to time on all such communications. Even the Income Tax return filed by him (page 30) on 30.6.2000 contained his residential address. It was maintained that no wrong address at any point of time was ever furnished.
6th Article of Charge deals with alleged misuse of salary certificate while obtaining loan from LIC Housing Finance Ltd., Bareilly. Applicant pointed out that a pay certificate dated 26.5.1999 was issued by KVS, Jabalpur in connection with taking loan from State Bank of India. Since the said Bank had been delaying the sanctioning of loan though required urgently, he took loan of Rs. 4,50,000/- from LIC Housing Finance Ltd., Bareilly and same very certificate dated 26.5.99 had been utilized for this purpose.
Moreover, he informed this aspect to Assistant Commissioner, Jabalpur, duly acknowledged on 7.10.99 (page 32). He had also applied a pay certificate on 25.8.99 as well as 27.1.2000. A remark was made on said application that applicant should submit a fresh application addressed to JC, Administration. In any case, the respondents vide communication dated 20.4.2000 addressed to LIC Housing Finance Ltd., Bareily enquired about this aspect and, therefore, it cannot be suggested that there was any mis-utilization of pay certificate. Prior to it on 20/21.2.2002 respondents addressed a letter to LIC Housing Finance Ltd., and required it to indicate whether the recovery of loan amount was for the period 1.4.2001 to 31.3.2002 or earlier so that necessary claim for income tax rebate etc. could be processed.
5. Applicant strongly contended that enquiry had been conducted by an officer who was a retired officer, which is impermissible in law.
Reliance was placed on 2004 (13) SCC 427 Ravi Malik v. National Film Development Corporation Ltd. and Ors. whereby interpreting the service rules and regulations, 1982 applicable to National Film Development Corporation Ltd., particularly Rule 23 (b) as well as Rule 9 it was held that a retired officer would not come within definition of 'public servant' for the purpose of Rule 23 (b). It was further observed that directions issued by the Central Vigilance Commission cannot override any interpretation, which a Court may put, as a matter of law, on it.
Further reliance was placed on Guwahati Bench judgment dated 2.6.2005 in OA 97/2005 Vijay Bhatnagar v. UOI and Ors. where a similar view had been taken and an appointment of Shri M.M. Lal (retired Assistant Commissioner of KVS) as an Enquiry Officer was quashed.
6. Further contention raised had been that EO's report supplied to him was not complete on all aspects. It was totally illegible and incomplete report and, therefore, he was seriously prejudiced. Drawing our attention to internal page 9 of said report, it was contended that certain manipulations were made, which amounts to forgery. He had also made an application under Right to Information Act to supply complete & legible enquiry report. Applicant strongly contended that he was also denied to be assisted by Defence Assistant despite representation made on said aspect.
7. Further more, he requested to supply two additional documents, namely, date of sending ACR to the Headquarter as well as A/c Dak Register which contained the details of his leave applications. The said documents were not supplied without any justification. Further contention was raised that none of the witnesses gave individual statement and the only statement was in the form of a note sheet (page 26 of paper book), which too was dated 15.10.1999. As such findings were based on no evidence.
8. In the backdrop of above, applicant vehemently pleaded that respondents have virtually fixed him on false, frivolous and vexatious allegations and he deserves the grant of relief, as prayed for.
9. The respondents contested the claim laid stating that as per Article 80 of Education Code, provisions of CCS (CCA) Rules, 1965 are applicable to KVS mutatis mutandis. Since applicant was involved in serious misconduct during the year 1999-2000, a Charge Memorandum was issued which contained 6 Articles of Charge. An oral enquiry was conducted as per the Rules and an opportunity of being heard was afforded. On consideration of entire matter, penalty of dismissal was imposed, which has been upheld by the appellate as well as revisional authorities. His appeal as well as revision petition were considered objectively and dispassionately. In fact he had cross-examined many of the witness on 11.9.2001. Proceedings continued on 12 & 13.9.2001 at Jabalpur but he deliberately evaded the enquiry, while he was present in the office. He refused to cross-examine other witnesses on 12.9.2001 and requested to postpone the enquiry saying that he had to appear before this Tribunal at Jabalpur Bench on 14.9.2001 and also to collect certain required papers from Bareilly. He also requested that he was not feeling well and on his request, the date of hearing was fixed from 6th to 8th Feb. 2002. However, he again expressed his inability to attend the disciplinary proceedings. In these circumstances, Enquiry Officer had to conduct the enquiry ex- parte, putting an end to applicant's dilatory tactics. Enquiry Officer vide his letter dated 14.9.2000, 1.11.2000 & 5.1.2002 summoned him to attend the hearing and extended the opportunities to intimate name of Defence Assistant, but he declined to avail the said opportunity. Therefore, it cannot be contended that he was denied to take the help of Defence Assistant.
Vide statement dated 17.8.2001 applicant declined to have the assistance of defence assistant. He categorically stated that he did not require any defence assistant and would defend himself. The enquiry was held at Jabalpur as well as Bhopal. So far as the averment regarding making available him a legible copy of the enquiry report is concerned, he never contested the issue either in appeal or revision.
It is no doubt true that incident took place on 14.10.99 though it was mentioned as 15.10.99. This was a pure typographical mistake and nothing more. Penalty imposed was commensurate to misconduct committed & prove.
10. Shri S. Rajappa, learned Counsel contended that judgment of Guwahati Bench, as referred by applicant has been set aside by the Guwahati High Court vide WP (Civil) No. 6795/2005 - KVS and Ors. v.Vijay Bhatnagar decided on 13.11.2006. Learned Counsel further contended as per Article 80 of the Education Code for KVS, the provisions of CCS (CCA) Rules, 1965 are applicable mutatis mutandis & there is no requirement under the rules to appoint 'public servant' as an Enquiry Officer. Thus, learned Counsel tried to distinguish the judgment of Ravi Malik (supra).Mahindra & Mahindra Ltd. v. N.B. Narawade to contend that using of abusive language is a serious misconduct warranting dismissal.
12. We have heard the applicant in person and learned Counsel for respondents at length and perused the pleadings carefully. The original records relating to departmental enquiry were also made available to us and we perused the same minutely. On perusal of daily order sheet dated 17.8.2001, we notice that it reads as- IO further asked the CO to suggest name of another DA whom he would like to be assisted in his proceedings. The CO replied in the negative and he pleaded that he would not require any DA and proceed in his proceedings himself.
Perusal of above statement, duly signed by applicant, in our considered view, would establish that he had taken a conscious and clear stand that he did not require defence assistance to assist him. We have seen the communications referred on the said subject of seeking said assistance & found that same were of date anterior to said statement dated 17.8.2001. In the circumstances, the first & foremost plea that he was denied opportunity of being heard or reasonable opportunity to seek assistance of a Defence Assistant is far from truth. There is no substance in the said contention.
13. We may also note the fact that though there are 6 different charges leveled against him and all of them were proved, but the revisional authority vide para 9 (ii) with reference to applicant's plea that Article 4, 5 & 6, being trivial charge, did not warrant dismissal from service, stated that impugned penalty of dismissal had not been imposed on said allegations alone but because of 'all the six charges'.
14. It is no doubt true that applicant had raised numerous grounds in support of his claim before the revisional authority. According to applicant, the same were not considered. Learned Counsel for respondents, on the other hand, pointed out that revisional authority examined each aspect of the case very minutely and passed reasoned, detailed, speaking and analytic order. It would be expedient to notice the relevant extracts of the revisional authority's order dated 23.3.2006 which reads as under: 9. On examination of the matter, my view in regard to the above grounds is as follows: As regards the plea mentioned on para 8 (a), Shri Sharma had raised this issue before the Appellate Authority also vide his appeal petition dated 19.12.2002. It is also evident from the Inquiry Report that the said incident took place on 14.10.1999, and was reported to the authorities on15.10.1999. Therefore, it is true that the incident took place on 14.10.1999 whereas it was mentioned as 15.10.1999 in the Charge Sheet. On the other hand, statements of witnesses in the inquiry confirm that the appellant had used abusive language against Shri P. Subuddhi, Administrative Officer, Shri RK Nair, Superintendent (Admn.) and Shri MS Chauhan, Education Officer.
An error of one day in the charge regarding date of occurrence of the incident in question does not vitiate the substance of the charge, which otherwise stands established.
With reference to the plea mentioned on para 8 (b), penalty of dismissal has not been imposed on the basis of charge IV, V and VI alone, but all the six charges.
The Inquiry Officer vide his letter dated 14.09.2000, 01.12.2000 and 05.01.2001 summoned Shri Sharma to attend the hearing and extended opportunities to intimate the name of his Defence Assistant as per the provisions of CCS (CC&A) Rules, 1965. Thus, he was given ample opportunity to nominate his defence assistant which he did not avail of.
Shri Sharma had attended the enquiry on various occasions. In fact, he had cross examined many of the witnesses on 11.09.2001. Later, he refused to cross examine other witnesses and requested to postpone the inquiry saying that he had to appear before CAT on 14.09.2001 and also to collect inquiry papers from Bareily. He also requested that he was not feeling well and on his request the next date was fixed on 06th to 08th February 2002. Accordingly, all the witnesses were also informed. However, he again expressed his inability to attend the disciplinary proceedings. In view of this, the inquiry officer was justified in putting an end to Shri Sharma's dilatory tactics, and proceeding ex-parte against him.
The import of the ground quoted verbatim in para 8 (e) above is totally unclear, and therefore merits no consideration.
10. While dismissal from service is undoubtedly the most severe penalty, charges against Shri Sharma were also of a serious nature.
No organization can function efficiently, if it tolerates employees who not merely do not perform assigned duties, but indulge in insubordination, willful absence from duty and falsehood, and abuse their superiors. The Apex Court has also held, in 'Mahindra and Mahindra Ltd. v. N B Narawade' that dismissal of a workman for use of abusive language cannot be held to be disproportionate. In the instant case, charges against Shri Sharma go well beyond this.
11. In the light of the above, Shri Sharma's petition dated 28.01.04 is found to be without merit and is accordingly rejected.
15. As far as applicant's contention that disciplinary proceedings conducted by a retired officer is impermissible in law is concerned, we may note that the judgment of Ravi Malik (supra) is clearly distinguishable inasmuch as provisions of CCS (CCA) Rules are applicable to KVS in terms of Article 80 of Education Code. There is no requirement in law/rules to appoint an enquiry officer, who is a public servant. Secondly, Guwahati Bench judgment in Vijay Bhatnagar (supra) on which reliance was placed by him, stands over-ruled by Hon'ble Guwahati High Court in Writ Petition No. 6795/2005 decided on 13.11.2006. As such, said contention has no force and has to be rejected.
16. So far as contention raised that impugned penalty is harsh, excessive and disproportionate to charges levelled is concerned, we may note that in Mahindra & Mahindra (supra) for using abusive language, the Hon'ble Supreme Court ruled that it is a grave misconduct justifying imposition of major penalty. What should be the penalty imposed upon a delinquent, is within the domain of concerned disciplinary authority and Courts cannot substitute it unless it is shockingly disproportionate. In our considered view, the punishment imposed by concerned authority does not warrant any interference, particularly in view of the fact that it had not been imposed because of trivial nature of charges, like Articles V and VI alone, but was inflicted, as observed by the revisional authority, keeping in view 'all the 6 charges'. Therefore, the said ground also does not help the applicant.
17. As far as 1st and 2nd Article of Charges are concerned, we may note that it is no doubt true that for certain period, leave had been granted very recently vide Assistant Commissioner, Jabalpur order dated 24.10.2006, but that would not absolve him of misconduct alleged, particularly for the reason that his plea that he had to appear before Jabalpur Bench of the Tribunal as well as before Special Court at Lucknow in between dates when he was directed to proceed on tour, he in fact, did not appear before said Courts. No order sheet of this Tribunal dated 19.11.1999 was produced to establish that he appeared before the Tribunal. Similarly, no order sheet of the Ld. Court of CBI, Lucknow dated 29.11.1999 has been produced before the Tribunal.
Allegation was specific that he failed to perform his assigned duties willfully. When applicant, on the one hand, did not perform his assigned duties on the pretext that he was to appear before the Court, but on the other hand actually did not appear, his plea that he was prevented to work, deserves to be rejected. In such circumstances, he cannot be allowed to raise such a plea. Otherwise, it would amount to give premium to falsehood.
As far as allegations made vide 3rd Article is concerned, on perusal of original records, we notice that the Administrative Officer was examined by the Inquiry Officer on 12.09.2001. In examination-in- chief the said witness relied upon his earlier statement dated 15.10.1999 which was exhibited as SW-5 and taken on record. He was cross-examined by applicant & he pointed out in specific the unparliamentary language used against him in answer to question No. 3. Similarly, other witnesses were examined on 12.09.2001, viz. S/Sh. P. Subudhi, J.R. Rao, Rana Oraon and they were also cross- examined by him. Furthermore, the records established that proceedings were held on 06.02.2002, when R.K.Nair, Superintendent and A.P.C. Rao, Assistant Superintendent were examined. Shri M.S. Chauhan, Education Officer and Shri Mohan Singh, A.I.O. were examined on 8th Feb. 2002 as SWs 14 & 15. S/Shri K.R.Tirpude, Asstt. Supdt., S.K. Tripathy, UDC, Alok Kumar, UDC and Hari Krishna Gurzar, UDC (SW 10 to 13) were also examined on 17th February, 2002 when applicant was absent. Said witnesses reiterated their earlier statement. Similarly, other charges were held to be proved. Thus, in the circumstances, it is established that there had been overwhelming evidence brought on record, which proved applicant's guilt. We do not find violation of the principles of natural justice & applicant was afforded more than reasonable hearing.
19. It is trite that judicial review cannot be extended to examination of correctness of reasonableness of the decision as a matter of fact.
This aspect has been clearly observed vide para 27 in Union of India v.Parma Nand 27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with: the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that. the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.Apparel Export Promotion Council v. A.K. Chopra . Para 17 of the judgment reads thus: 17. .Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of Judicial Review must remain conscious of the fact that if the decision has been arrived at by the Administrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute, its judgment for that of the Administrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority.
20. In view of the discussion made hereinabove & taking a cumulative view in the matter, we find no merit and justification to interfere in respondents' action. OA being devoid of merit is dismissed. No costs.