Ashok Kumar Sharma vs The Vice Chairman Kendriya ...
2012 Latest Caselaw 3899 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 05.07.2012
+       W.P.(C) 5996/2007

ASHOK KUMAR SHARMA                                             ... Petitioner

                                         versus

THE VICE CHAIRMAN
KENDRIYA VIDYALAYA SANGATHAN & ORS                               ... Respondents
Advocates who appeared in this case:
For the Petitioner           : Ms Arati Mahajan Shedha with Mr Gaurav Bisht
For the Respondents          : Mr S. Rajappa

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                   JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition is directed against the orders passed by the Central

Administrative Tribunal, Principal Bench, New Delhi on 30.03.2007 and

02.07.2007 in O.A.1292/2006 and R.A. 114/2007, respectively. The petitioner

before us had filed the said original application (O.A.1292/2006) being aggrieved

by the order of dismissal from service passed against him.

2. The petitioner was working as an Audit Assistant (re-designated as

Assistant Superintendent) with the respondent i.e., Kendriya Vidyalaya

Sangathan. On 16.05.2000 a charge sheet was submitted by the respondent to the

petitioner which contained six articles of charge. The charges were as under:-

"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 15.10.1999 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 07.04.2000 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.

ARTILCE-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 25.06.1999 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. The petitioner denied the said charges and an inquiry was held. The Inquiry

Officer submitted a detailed report dated 09.02.2002 holding the charges as

having been proved. The petitioner was supplied with a copy of the inquiry report

by virtue of the memorandum dated 26/28.04.2002 and he was required to submit

a representation, if any, before a final decision was taken in the matter. The

petitioner, however, sought time to collect certain information and documents by

virtue of the representation dated 25.05.2002. Ultimately, he submitted his

representation dated 09.08.2002. After the same was considered by the

Disciplinary Authority, the said Disciplinary Authority passed an order dated

05.11.2002 and imposed the punishment of dismissal.

4. Thereafter, the petitioner filed a statutory appeal before the Appellate

Authority. Since this appeal was not being disposed of, the petitioner approached

the Tribunal by way of an original application being O.A. 463/2003 which was

disposed of by the said Tribunal by an order dated 11.07.2003 directing the

Appellate Authority to dispose of the petitioner's appeal. Ultimately, the

Appellate Authority passed the appellate order on 29.09.2003 rejecting the

petitioner's appeal. Subsequently, the petitioner filed a revision petition before

the Revisional Authority. Once again, as the Revisional Authority had not

disposed of the revision petition filed by the petitioner, the latter approached the

Tribunal by way of O.A. No. 317/2005 which was disposed of by the Tribunal by

virtue of the order dated 11.02.2005 directing the Revisional Authority to dispose

of the revision petition. By an order dated 23.03.2006, the Revisional Authority

dismissed the petitioner's said revision petition.

5. Being aggrieved thereby, the petitioner filed the said O.A.1292/2006 in

which the Tribunal passed the impugned order dated 30.03.2007 which was

followed by the other impugned order dated 02.07.2007 passed in the petitioner's

review application being R.A.114/2007.

6. The first point that has been urged by the learned counsel for the petitioner

before us is that the inquiry report is based on an ex parte proceeding. She

submitted that the witnesses namely SW-8 to 15 were examined in the absence of

the petitioner and the petitioner also did not have any opportunity of cross-

examining the same. Consequently, she submitted that the petitioner did not have

an opportunity to defend himself and therefore the inquiry proceedings were

vitiated. She submitted that initially the petitioner was present in the hearings

before the Inquiry Officer, however, when the hearings were scheduled for 6th to

8th February 2002, the petitioner could not be present inasmuch as the petitioner

had to attend the Special Court (CBI) at Lucknow on account of the fact that a

non-bailable warrant had been issued requiring the presence of the petitioner at

Lucknow on 05.02.2002. She submitted that although the petitioner had requested

that the dates of 6th to 8th February 2002 be cancelled and some other dates in the

last week of February 2002 be given for the inquiry proceeding, that request was

not acceded to by the Inquiry Officer. Even the petitioner's application for leave

was not accepted and the petitioner had to proceed to Lucknow in the absence of

any leave having been granted to him on account of his imminent arrest as the

non-bailable warrant had already been issued for his presence on 05.02.2002 by

the Special Judge, CBI at Lucknow. Thus, according to the learned counsel for

the petitioner, the petitioner had ample justification for not being present in the

hearings conducted on 6th to 8th February 2002. According to her, the inquiry

proceedings ought not to have been held on those days and the Inquiry Officer

ought to have acceded to the request of the petitioner for adjournment of the

proceedings to the last week of February 2002. Since part of the inquiry

proceedings were held behind the back of the petitioner and the petitioner was

deprived of an opportunity of cross examining the witnesses, being SW-8 to 15,

who were all examined between 6th to 8th February 2002, the learned counsel for

the petitioner submitted that the inquiry itself was vitiated and the entire

proceedings were liable to be set aside. She also submitted that while this plea

was specifically taken before the Tribunal and the same can be discerned from the

submissions recorded in para 4 of the impugned judgment, the Tribunal has not

returned a specific/clear finding with regard to this aspect of the matter.

7. We have also heard Mr Rajappa who appeared on behalf of the respondents

on this aspect of the matter. We have not heard arguments on the merits of the

charges. We are only at this point considering the submissions of the learned

counsel for the petitioner that the Tribunal has not returned any finding with

regard to the plea that the petitioner was not afforded an opportunity of defending

himself. This plea has arisen in the backdrop of the factual submission that the

petitioner was prevented by other circumstances beyond his control from

participating in the inquiry proceedings on the dates given on 6th to 8th February

2002 and it is on these dates that the witnesses namely SW- 8 to 15 were

examined and the petitioner was left with no opportunity to cross examine them.

8. We find that, whatever may have been the earlier conduct of the petitioner

during the inquiry proceedings, the further hearings were scheduled for 6th to 8th

February 2002. In the meanwhile, the petitioner sent a letter dated 23.01.2002 to

the Inquiry Officer requesting him to extend the date to the last week of February

since he had to attend the CBI court on the said date at Lucknow (U.P). This fact

is not denied inasmuch as in the Inquiry Report itself there is a mention that the

petitioner had asked for postponement due to the CBI inquiry at

Lucknow/Bareilly. The Inquiry report further indicates that this request of the

petitioner was not granted and he was tele-graphically intimated the regret and he

was informed that he should attend the inquiry proceedings as scheduled. The

Inquiry report also revealed that the Assistant Commissioner, KVS, Jabalpur had

also not granted the petitioner any leave and, permission to leave the headquarter

was not given either. But, as we have already indicated above, while recording

the submissions of the learned counsel for the petitioner, a non bailable warrant

had been issued by the Special Judge CBI at Lucknow requiring the presence of

the petitioner before his court on 05.02.2002. Thus, the petitioner, fearing that he

would be arrested, left the head quarters on 04.02.2002 despite the fact that his

leave had not been sanctioned. It is an admitted position that the petitioner had in

fact appeared before the Special Judge CBI at Lucknow and this has also been

noted in the impugned order of the Tribunal dated 30.03.2007 at page 5.

9. However, this aspect of the matter has not been given due consideration by

the Tribunal inasmuch as the Tribunal after recording the factum of the

petitioner's appearance before the Special Judge, Anti Corruption (Central) at

Lucknow on 05.02.2002 has not discussed or returned any finding as to what

would be the consequence of this. We, therefore, feel that it would be appropriate

if the impugned order is set aside and the matter is remitted to the Tribunal for

considering this aspect of the matter. Since, we are remitting the matter to the

Tribunal, we feel that it would be appropriate that the parties are permitted to raise

all issues and therefore Tribunal should grant a de novo hearing to the parties.

10. Consequently, we set aside the impugned order dated 30.03.2007 and

02.07.2007 and remit the matter to the Tribunal for a de novo hearing on all

aspects of the matter and particularly on the issue of lack of opportunity on the

part of the petitioner to defend his case.

11. The writ petition is allowed. There shall be no orders as to costs. The

parties shall appear before the Tribunal on 26.07.2012 in the first instance. We

also make it clear that we have not expressed any opinion on the merits of the

matter.

BADAR DURREZ AHMED, J

SIDDHARTH MRIDUL, J JULY 05, 2012 kb