Delhi High Court
Mahavir Vats vs Kendriya Vidyalala Sangathan ... on 6 August, 2012
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 06.08.2012
+ W.P.(C) 4663/2012
MAHAVIR VATS ... Petitioner
versus
KENDRIYA VIDYALALA SANGATHAN (HQ)-KVS AND ANOTHER
... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Virender Mehta.
For the Respondent : Mr S.Rajappa, Mr H.Yayaraman and Dr Puran Chand.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE M. L. MEHTA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This writ petition is directed against the order dated 26.03.2012 passed
by the Central Administrative Tribunal, Principal Bench, New Delhi, in OA
No.1093/2011. It transpires that the petitioner, who was working as an Upper
Division Clerk with the Kendriya Vidyalaya Sangathan (KVS) Headquarters,
New Delhi, was chargesheeted on 10.01.1994 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. Thereafter the matter was considered by the enquiry officer and a
report was submitted. The Disciplinary Authority after confirming the fact
that the charges were proved against the petitioner imposed the punishment
of removal from service by an order dated 18.02.1997. The Appellate
Authority had also confirmed this punishment on 15.10.1997.
3. Thereafter the petitioner filed a writ petition in this court challenging
the order passed by the Disciplinary Authority and the Appellate Authority.
However, during the pendency of that writ petition the jurisdiction was
transferred to the Central Administrative Tribunal and consequently the
matter stood transferred to the said Tribunal and was renumbered as Transfer
Application No.1094/2009 which was disposed of by the Tribunal by virtue
of the order dated 17.12.2009 wherein the Tribunal observed and held as
under:-
"9. In the above view of the matter, as we find that before
taking up the working of honorary manager, applicant has
applied for the same, which is in consonance of R.15 of CCS
(Conduct) Rules. The second allegation of having agency in
his name and gaining financially out of it has not come forth
from any evidence during the course of inquiry. As such,
conclusion of the authorities below is based on suspicion and
surmises.
10. Be that as it may, these facts have not at all been gone
into by the appellate authority while considering the appeal of
the applicant against the dismissal.
11. As there has been non-application of mind to this
aspect by the authorities and relevant considerations have not
been taken in true perspective by the appellate authority, an
order passed by it cannot be countenanced in law.
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."
(underlining added)
4. Thereafter, the Appellate Authority once again considered the matter
only on the question of proportionality and imposed the penalty of
compulsory retirement. It is against that order that the petitioner filed the
said OA No.1093/2011 in which the impugned order dated 26.03.2012 has
been passed whereby by the petitioner's said OA was dismissed.
5. After considering the arguments advanced by the learned counsel for
the parties we find that the initial order passed by the Tribunal in TA
No.1094/2009 had, in effect, set aside the findings with regard to the charges
against the petitioner and had only directed the Appellate Authority to
consider the question of proportionality of punishment. We find that order a
little strange inasmuch as if the Tribunal felt that the charges did not stand
proved, there would be no question of punishment and therefore the question
of proportionality would not at all arise. Anyhow, neither the petitioner nor
the respondent filed any writ petition against that order and accepted the
same. Subsequently, by virtue of the Appellate Authority's order, in the
second round, the punishment has been altered to compulsory retirement and
it is that order which became the subject matter of challenge before the
Tribunal which has been dismissed by the Tribunal by virtue of its order
dated 26.03.2012.
6. We feel that the appropriate course of action to be adopted in the
present case, and both the counsel agree to this, is to set aside the order of
the Appellant Authority as well as that of the Tribunal and remit the matter
to the Appellate Authority for consideration afresh both on the question of
charges as well as on the question of penalty, if any. As a result, we set aside
the said orders and remit the matter to the Appellate Authority. The
Appellate Authority shall consider the matter as if the appeal has been filed
before it for the first time against the Disciplinary Authority's order.
7. The writ petition stands disposed of accordingly.
BADAR DURREZ AHMED, J
M. L. MEHTA, J
AUGUST 06, 2012
mk
