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Judgment
Nita Chowdhury, Member (A)
By filing this OA, the applicant is seeking the following reliefs:-
"(i) That the Hon"ble Tribunal may graciously be pleased to pass an order of quashing the impugned the order dated 17.7.2015(Annex.A/1), appellate authority order dated 13.6.2016 (Annex.A/2), charge sheet dt. 25.3.2013 (Annex.A/3), IO report (Annex.A/5), and entire proceedings, declaring to the effect that the same is illegal, arbitrary and against the principle of natural justice and consequently, pass an order directing the respondents to grant all the consequential benefits deeming no charge sheet was issued to the applicant including arrears of difference of pay and allowances with interest.
(ii) That the Hon"ble Tribunal may further graciously be pleased to pass an order directing the respondents to treat the entire suspension period as on duty for all the purposes.
(iii) Any other relief which the Hon"ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."
The brief facts of the case as stated in the OA are that a departmental enquiry was initiated against the applicant - PGT vide Memorandum dated 25.3.2013 on the following article of charges:-
"ARTICLE-I
Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi, failing to attend his assigned duty on 15.12.12 at 8.00 am in conduct local tour despite the direction of the HOS and as such the HOS had to faced serious chaotic situation to manager the programmed specially your class.
The above said act of disobey dinction and lack of his duty is gross misconduct on his part.
Thus the above said Act of omission and commission is gross misconduct on the part of Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi, and unbecoming of a Govt servant is violation sub rule 1 of 3 of the CCS (Conduct) Rules 1964.
ARTICLE-II
Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi had tampered the teacher attendance register by overwriting on the special leave on 20/12/12 while he reported for his duty at 4: pm.
Thus the above said Act of omission and commission is gross misconduct on the part of Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi, and unbecoming of a Govt servant is violation sub rule 1 of 3 of the CCS (Conduct) Rules 1964.
ARTICLE-III
Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi failed to take his block classes for class XII (Math) from 12:00pm to 1:00 pm 20/12/12 as per time of block teaching.
Thus the above said Act of omission and commission is gross misconduct on the part of Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi, and unbecoming of a Govt servant is violation sub rule 1 of 3 of the CCS (Conduct) Rules 1964.
ARTICLE-IV
Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi failed to prepared and maintained teacher diary and got it signed by the HOS from time to time while the maintain of the record in time is mandatory for the teacher.
Thus the above said Act of omission and commission is gross misconduct on the part of Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi, and unbecoming of a Govt servant is violation sub rule 1 of 3 of the CCS (Conduct) Rules 1964.
ARTICLE-V
Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi instigated his wife Smt. Neelam sent a letter dt19/04/12 i.e. complaint against his HOS to the Director of Education and other Sr. Officers of the Deptt wherein the unfounded charges were made by his wife.
Thus the above said Act of omission and commission is gross misconduct on the part of Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi, and unbecoming of a Govt servant is violation sub rule 1 of 3 of the CCS (Conduct) Rules 1964 and further violation of rule 20 of the CCS conduct Rules 1964i/e/ inviting outside influence in the service matters.
ARTICLE-VI
Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi, on 02/02/13 about 6:10pm abused his HOS by using filthy languages and made a hostile physical assailed upon the Principal in presence of some teachers and Vice/Principal of the school.
Thus the above said Act of omission and commission is gross misconduct on the part of Sh. Sanjeev Kumar, PGT (Math), SBV E-Block Nand Nagri, Delhi, and unbecoming of a Govt servant is violation sub rule 1 of 3 of the CCS (Conduct) Rules 1964."
3.1 For the above misconduct, the applicant was placed under suspension vide order dated 5.2.2013. The said departmental enquiry as per the version of the applicant is based on 10 relied upon documents and statements of 6 witnesses, but the copies of the same were not supplied to the applicant along with the charge sheet. However, the same were supplied to the applicant vide letter dated 29.4.2013. Applicant"s contention is that the statements of 6 witnesses were not supplied to him for submitting his reply to the chargesheet and further against the chargesheet, the applicant submitted his representation, however, the same was rejected by the disciplinary authority without considering the same and appointed the inquiry officer to inquire into the matter. Further contention of the applicant is that the Inquiry Officer has not conducted the proceedings fairly, transparently and acted under dictation and recorded in the proceedings after obtaining direction and decision from Deputy Director North/East. Against the conduct of the IO, the applicant submitted number of representations one after another to the disciplinary authority neither the IO stopped to conduct the enquiry nor the disciplinary authority taken any action.
3.2 The inquiry officer after completion of inquiry submitted his report dated 28.10.2014 in which proved the charge nos.1,2, 3 & 6 and not proved the charge nos.4 and 5
3.3 The applicant submitted his detailed representation against the said inquiry officer reply on 12.3.2015 and the disciplinary authority had carefully gone through the representation submitted by the applicant, the findings submitted by the EO and other material available on DE file and vide impugned order dated 17.7.2015 imposed the penalty of reduction to two lower stages in the time scale of pay for a period of three years with further directions that the official will not earn increments of pay during the said period of reduction and on expiry of said period, the reduction will have the effect of postponing the future increments of his pay. Further the period of suspension from 5.2.2013 to 14.4.2014 be treated as not spent on duty".
3.4 Aggrieved by the said order of the disciplinary authority, the applicant filed his appeal on 25.8.2015 before the appellate authority and when the same was not decided, the applicant preferred OA 883/2016 and the same was decided by this Tribunal vide order dated 3.3.2016 with the directions to the appellate authority to decide the same within two months. Thereafter on 13.6.2016, the appellate authority decided the appeal of the applicant vide which the appellate authority only reduce the penalty of the applicant to the extent of imposing the penalty without cumulative effect and rejected all the contentions of the applicant and justified the disciplinary authority order one way to another.
3.5 Aggrieved by the aforesaid orders, the applicant has filed this OA seeking the reliefs as quoted above.
Applicant"s counsel contended that the chargesheet has been issued by the incompetent authority as the competent authority is Director of Education and not Deputy Director of Education.
4.1 Further the chargesheet is vague as the charges are not specific and are general in nature and as such the same is not sustainable in the eyes of law.
4.2 Further the applicant submitted his reply to the chargesheet. However, without considering the same, the disciplinary authority decided to proceed in the inquiry proceedings.
4.3 Further regarding 1st charge in respect of local tour, it is submitted that on 14.12.2012 during the school timing, the applicant requested the Principal that he is not well and it will not be possible for him to go on tour along with class for which the applicant had already given his reply to the show cause notice and explained his position and also tendered his apology on 29.12.2012 and therefore, now at this stage issuing the charge on that issue is not sustainable in the eyes of law.
4.4 Further regarding 2nd charge of tampering in register, it is submitted that on 29.12.2012, the applicant was on half leave for which the information was given to the Principal and the applicant reached the school at 3.30 p.m. and only after taking permission of the Principal marked his half day attendance and therefore, there is no question of tampering the attendance register and therefore, the charge sheet on this half day leave at this stage is totally malafide intention of the concerned authority at this stage.
4.5 Further regarding other charges, the applicant is trying to substantiate his stand.
4.6 Applicant"s further contention is that disciplinary and appellate authorities orders are non-speaking and unreasoned orders as his contentions and grounds have not been dealt with by them.
The counsel for the respondents has submitted that under Rule 13(2) of CCS (CCA) Rules, 1965 stipulates that a disciplinary authority is competent under these rules to impose any of the penalties specified under clauses (i) to (iv) of Rule 11 and may institute disciplinary proceedings against any Govt. servant for the imposition of any of the penalties specified under Rule 14 of CCS (CCA) Rules, 1965 and issue charge sheet for the same.
5.1 Counsel further submitted that the inquiry has been conducted after proper analysis of available facts and evidence and charge sheet has been issued after proper vetting.
5.2 Counsel after referring the article of charges submitted that most of the articles of charges have been proved except article of charges nos.4 & 5 in the inquiry conducted by the Inquiry Officer. The findings of the inquiry officer are based on the documents and facts including statements of witnesses and full assessment of evidences.
5.3 Counsel further submitted that the whole proceedings in the case, the applicant never seems to be interested to defend any of the article of charges framed against him at any point of time and has just tried either to delay the matter or to file complaints/representations against the IO regarding unfair inquiry. The Inquiry Officer before submitted her report, has taken all the facts and record including defence documents into consideration while making her findings.
5.4 The disciplinary and appellate authorities have carefully gone through the chargesheet memo, inquiry report and other relevant record and found that the findings of the Inquiry Officer are based on the documents and facts including the witnesses and full assessment of evidences. The appellate authority has gone through the records including the Inquiry report dated 28.10.2014 as well as appeal of the applicant and the applicant was also given personal hearing on 28.9.2015 and all the grievances of the applicant regarding his case have been addressed properly in detail in the order of appellate authority.
Before coming to the issues raised by the applicant in this OA, it is pertinent to note that the law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon"ble Supreme Court in the following judgments:
"(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon"ble Supreme Court in para 9 observed as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada - bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon"ble Supreme Court observed as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon"ble Supreme Court has observed as under:-
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no.I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence."
Keeping in view the aforesaid observations of the Apex Court, this Court finds that in this case (vi) article of charges levelled against the applicant. Out of vi, iv and v were not proved but in respect of other charges were proved by the IO as the Enquiry Officer has on the basis of deposition of the PWs proved on record the said article of charges. On the basis of the said findings, the disciplinary authority imposed the said punishment which was later in appeal reduced to without cumulative effect and the period under suspension remained as not spent on duty" by the appellate authority.
This Court perused the Inquiry Officer report, disciplinary and appellate authorities orders. From the IO report, it transpires that the applicant has also cross-examined the statements of PWs and the IO recorded the detailed inquiry report and proved all the charges except article of charged (iv) and (v) and the said report was supplied to the applicant who in turn submitted his representation which disciplinary authority considered and passed a detailed and speaking order. Against the order of the disciplinary authority applicant preferred his appeal, which was considered by the appellate authority and then reduced the punishment which was imposed by the disciplinary authority.
The contention of the applicant that the charges are vague is not sustainable in the eyes of law as having perused the same, this Court is of the view that the same cannot be said to be vague.
Most of the grounds taken in the OA relates to the contention of applicant that punishment awarded is not commensurate with the gravity of misconduct alleged against him. It is well settled proposition of law, as held by the Hon"ble Apex Court in catena of cases, that it is only in those cases where the punishment is so disproportionate that it shocks the conscience of the court that the matter may be remitted back to the authorities for reconsidering the question of quantum of punishment. In Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad reported in 2010 (3) ALSLJ SC 28 it has been held by Hon"ble Supreme Court as under:-
"The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal it cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal".
Having regard to the gravity of the article of charge, the punishment awarded by the disciplinary authority vide impugned order dated 17.7.2015 and the said punishment awarded by the disciplinary authority was reduced to two lower stages in the time scale of pay for a period of three years, without cumulative effect and not adversely affecting his pension with the directions that he will not earn increments of pay during this period of reduction and further the period of suspension from 5.2.2013 to 14.4.2014 of the applicant be treated as "Not spent on duty". Hence, we are of the considered view that punishment imposed by the impugned orders is not so disproportionate that it shocks the conscience of the court, therefore, we do not find any case is made out for interference by the Tribunal even on the question of quantum of punishment.
In view of the facts of the case discussed above and in view of the law laid down by Hon"ble Apex Court referred to above and in view of the fact that no procedural lapses or violation of principles of natural justice was found to have been violated by the respondents, there is no ground for interference in the impugned orders.
Accordingly, the OA being devoid of merit is dismissed. No order as to costs.