DR. A.K. MISHRA, MEMBER (A)
1. The applicant was working as Upper Division Clerk (UDC) in Kendriya Vidyalaya School (KVS) Headquarters, New Delhi. He was chargesheeted on 10.01.1994 broadly on the following two allegations:-
(i) That while working as UDC during 1992-1994 he simultaneously acted as Manager to Sevti Devi Memorial Vidyalaya, Mahavir Enclave, Palam, New Delhi and looked after the day-to-day affairs of the said Vidyalaya at the cost of his official duties and the said Vidyalaya was a source of income to him.
(ii) That the applicant was also functioning as the proprietor of Show Room Sales Agency of Bata India Ltd. At WZ-603, Palam Village, Main Road, Palam Colony, New delhi-45 and the said agency was a source of income to him.
2. The respondents have placed reliance on the following documents:-
“1-Visiting card in respect of Shri MK Sharma.
2-Receipt of Rs.4000/- by Shri Mahavir Vats.
3-Offer of appointment in respect of Sh. Umesh Chandra.
4-Promotion letter in respect of Shri Umesh Chandra.
5-Explanation furnished by Shri Mahavir Vats dated 8.5.94.
6-Letter dated 13.10.94 from Distt. Manager, Bata India Ltd. New Delhi.”
The letter of the District Manager, Bata India Limited states as follows:-
“REGISTERED A/D
Oct. 13, 1994
Mr.M.M. LAL
Sr. Admn. Officer (Vig.)
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi- 110 016.
Dear Sir,
This has reference to your letter No. F, B-23 (A) 94-KVS/VIG dated 09.09.94 addressed to
General Manager,
Corporate Bata India Ltd.,
205, New Delhi House,
27B, Barakhamba Road,
New Delhi- 110 001.
Pertaining to the information regarding the ownership of Bata Agency at Palam Village New Delhi.
As required by you we are forwarding you the full particulars of the person holding the Agency at Palam Village New Delhi along with Sales Tax No. and hence no intimation can be forwarded to you regarding Income Tax No.
Name of Agent : Mr. MAHAVIR VATS
Place of Agency : Palam Village
Address of Agency : Bata Agency
WZ/6037 Palam Village
Main Road
Palam Colony,
New Delhi - 110 045.
Date of Opening : 26 Feb. 1988
Sales Tax No. : LC/39/055559/1051
Date of Closing : 3 August 1994
We trust that this answers your quries but should you feel any other information pertaining the same please do write accordingly.
Thanking you,
Yours faithfully,
For BATA INDIA LIMITED
(A.K. TRIKHA)
District Manager”
3. The applicant in his representation took the plea that he was only managing day-to-day affairs of the Sevti Devi Memorial Vidyalaya as the Honorary Manager and was not drawing any honorarium or income from the said school. He was doing it not at the cost of his official duties. He had denied the receipt of Rs.4000/- which was brought in evidence against him.
3.1 As regards the second charge, his plea was that he was running the agency of Bata Shoe Company on behalf of his elder brother and his handicapped nephew. After considering his reply, and the case record, the Disciplinary Authority (DA) imposed the penalty of removal on the applicant on 18.02.1997. The appeal against the order of DA was rejected by the Appellate Authority (AA). The Review Petition against this order was rejected by the competent respondent authority. The applicant challenged these orders in WP(C)-6599/199 which was transferred to this Tribunal and registered as TA-1094/2009. After hearing the matter, the Co-ordinate Bench of this Tribunal made the following order:-
“12. In the result, for the foregoing reasons, OA is partly allowed. Appellate order is set aside. Matter is remitted back to the appellate authority to reconsider the aspect of proportionality of punishment imposed upon the applicant having regard to our observations made above by passing a speaking order within a period of three months from the date of receipt of a copy of this order. No costs.”
4. As would be seen from this order, the matter was remitted to the Appellate Authority (AA) to re-consider the appeal particularly as regards proportionality of the punishment imposed on the applicant having regard to the observations made by the Tribunal. In other words, the order of the DA, the findings of the IO were not set aside. It is significant that the O.A. was partly allowed. The only issue which was to be decided by the AA again was about the proportionality of the penalty imposed on the applicant having regard to the observations made in the order.
5. This order having attained finality, we cannot treat the present O.A. either as an appeal or as a Review Petition against the order dated 17.12.2009 of the Co-ordinate Bench of this Tribunal in TA-1094/2009. Nor can we travel beyond the order passed by the Co-ordinate Bench, nor grant a relief not prayed for. Now that the order of the AA has again been challenged in this O.A., we have to examine the validity of the impugned appellate order on the issue of proportionality only. The AA has made the following observations in the impugned order:-
“The undersigned have considered all the facts on record and submission made by Sh. Mahavir Vats, Ex-UDC in his appeal dated 31.03.1997 and observed that,
Sh. Mahavir Vats, Ex-UDC, KVS,HQ acted as a Honorary Manager of Sevti Devi Memorial Vidyalaya at Mahavir Enclave, Palam. The Vidyalaya is running in the memory of his mother Smt. Sevti Devi.
Sh. Mahavir Vats and his wife Smt. Prabha Vats were both KVS employees.
Sh. Mahavir Vats runs Bata Agency at RZ-188, Main Road, Palam Colony. The Agency was in his own name.
Sh. Mahavir Vats was the beneficiary and gets profits / dividends from different organizations that he was running Bata Agency and Sevti Devi Vidyalaya. Sh. Mahavir Vats claims to work in the honorary capacity as the assets / establishment was the property of the combined Hindi family headed by his father.
Sh. Mahavir Vats has contended that he was ignorant of rules due to which he did not objected to his father to run the Bata Agency in his name.
On analysis of the case in totality, it has been observed that proper procedure under CCS(CCA) Rules 1965 have been followed during the inquiry proceedings.
After careful consideration of all the facts/evidences of the case, findings of the Inquiry Officer and observation/direction passed by the Honble CAT in T.A.No. 1094/2009 vide order dated 17.12.2009, the undersigned hereby modify the penalty order dated 18.02.1997 to the extent that a penalty of compulsory retirement is imposed upon Sh. Mahavir Vats, Ex-UDC w.e.f. 18.02.1997. Other benefits will be decided in accordance with law.
Thus accordingly the appeal dated 31.03.1997 of Sh. Mahavir Vats, Ex-UDC stands disposed of in compliance with the Hon’ble CAT direction dated 17.12.2009 in T.A. No. 1094/2009.”
The AA has come to the conclusion that on the basis of evidence on record, the applicant, in fact, was acting as the Honorary Manager of Sevti Devi Memorial Vidyalaya and was also running the Bata Agency. The institutions were the property of combined Hindu family of which he was a member.
6. On consideration of the facts of the case and the evidence on record, the findings of the IO as well as the observations of this Tribunal, the respondent AA modified the penalty of removal to that of compulsory retirement.
7. It is the settled law that the scope of judicial review is limited in nature. It is confined to considering(a) the competence of the authority imposing the penalty; (b) whether provisions of rules were violated; (c) whether principles of natural justice were violated and reasonable opportunity was not given to a delinquent officer; (d) whether the order was based on no evidence; and(e) whether the penalty was grossly disproportionate to the misconduct.
7.1 In the case of High Court of Judicature at Bombay through the Registrar Vs. Uday Singh and Ors., JT 1997 (5) SCC 298, the Apex Court held that the technical rules of evidence including the doctrine of ‘proof beyond doubt’ were not applicable in a departmental case. So long as there was some evidence to support the findings, it could not be said to be based on no evidence.
7.2 In the case of Govt. of T.N. and Anr. Vs. A. Rajapandian, AIR 1995 SC 561, the Apex Court also held that where there are relevant materials which reasonably support the conclusion of the respondent authority, it is not the function of the Administrative Tribunal to review it.
7.3 Again in the case of Bank of India and Another Vs, Surya Narayan, JT 1999 (4) SC 480, the Apex Court observed that the Court exercising the powers of judicial review should not interfere with the findings of facts arrived at in a departmental enquiry unless the findings are passed on no evidence or patently perverse.
8. As has been stated earlier, the Co-ordinate Bench had examined the issues raised by the applicant in TA-1094/2009 which was partly allowed and the matter was remitted to the AA to examine the proportionality of the penalty imposed keeping in view the observations made in that order. On reconsideration of the matter, the AA has come to the conclusion that the applicant had committed the misconduct of running a private school and commercial agency. At the same time, keeping in view the observations of this Tribunal on proportionality, the AA has modified the penalty of removal to that of compulsory retirement. This is a substantial relief granted to the applicant in that he would be entitled to retiral benefits now which were not available to him earlier. We do not find any infirmity in the modified penalty which would shock judicial conscience in the facts and circumstances of the case. Therefore, I do not think that any further interference is called for. Accordingly, the O.A. is dismissed. No costs.