The Commissioner, Kvs vs Ashok Kumar Sharma
2014 Latest Caselaw 2630 Del

$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 5419/2013
%                                  Date of decision: 22nd May, 2014

       THE COMMISSIONER, KVS                        ..... Petitioner
                          Through:      Mr.Rajappa and Ms.Aditi
                                        Sinha, Advocates.
                          versus

       ASHOK KUMAR SHARMA        ..... Respondent
                   Through: Mr.T.D.Yadav, Adv.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MS. JUSTICE DEEPA SHARMA
       GITA MITTAL, J. (ORAL)

1. We have heard learned counsel for the parties.

2. The writ petitioner has assailed the order dated 25 th

February, 2013 in O.A.No.1292/2006 of the Central Administrative

Tribunal. The facts disclosed before us would show that the

respondent was appointed as an Audit Assistant (re-designated as

Assistant Superintendent) with the Kendriya Vidyalaya Sangathan,

(appellant before us). Pursuant to a charge-sheet dated 16th May,

2000, disciplinary proceedings were held against the respondent

which culminated in an enquiry report dated 9 th February, 2002

whereby the Inquiry Officer found the respondent guilty of the

following charges.:

"Article-I During 1999-2000 remanded absent from duty wilfully. 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 wilfully.

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 2000-20 allegation against the Assistant 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.

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 25.06.99 by the Assistant Commissioner, KVS, Regional Officer, Jabalpur while getting loan from LIC Housing Finance Ltd., Bareilly without informing the facts to his head office/appointing authority."

3. After considering the representation of the petitioner on the

enquiry report, the Disciplinary Authority passed an order dated 5th

November, 2002 accepting the recommendation of the Inquiry

Officer and imposing the punishment of dismissal from service.

Thereafter the petitioner filed a statutory appeal before the

Appellate Authority which had not been considered. Aggrieved

thereby, the petitioner approached the Tribunal by way of an

original application being O.A.No.463/2003 which was disposed of

by the said Tribunal by an order dated 11th July, 2003 directing the

Appellate Authority to dispose of the petitioner's appeal. The

appeal was finally disposed of by an order dated 29 th September,

2003 of the Appellate Authority rejecting the appeal. The

respondent filed a Revision Petition against the order of the

appellate authority. Again the revision petition was not taken up

for consideration by the Revisional Authority. Aggrieved thereby

the respondent filed O.A.No.317/2005 which was disposed of by

order dated 11th February, 2005 directing the Revisional Authority

to dispose of the revision. This revision was dismissed by an order

dated 23rd March, 2006.

4. The respondent assailed these proceedings by way of

O.A.No.1292/2006 which culminated in the order dated 30 th

March, 2007 of the Tribunal. The matter did not rest here and a

Review Petition bearing R.A.No.114/2007 filed by the respondent

was also rejected by an order dated 2nd July, 2007.

5. The respondent assailed the orders which have been passed

by the authorities as well as the Tribunal against him by way of

Writ Petition (Civil) No.5996/2007 which was favourably decided

on 5th July, 2010. This order has attained finality.

6. Our attention is drawn to the order dated 5th July, 2012. We

find that the court has noticed that the petitioner was prevented

from being present in the enquiry on 6th to 8th February, 2002. This

was because warrants were issued for his presence on 5th February,

2002 by the Special Judge, CBI at Lucknow. On these dates,

instead of adjourning the disciplinary proceedings, witnesses being

nos.SW8 to 15 were examined. This court by the order dated 5 th

July, 2012 was of the view that in view of the enquiry proceedings

between 6th to 8th February, 2002 having been conducted behind

the back of the petitioner, the same stood vitiated. Therefore,

without examining any other issue in the matter, this court accepted

the position that injustice had resulted against the respondent when

he was deprived of the opportunity to appear in the enquiry on 6th

and 8th February, 2002. This court in para 8 of order dated 5th July,

2012 has noted that the present respondent (petitioner therein) had

sent a letter dated 23rd January, 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.

Unfortunately, this letter was completely ignored by the Inquiry

Officer denying the appropriate opportunity to the petitioner to

participate in the inquiry proceedings. This court has noticed that

the Special Judge, CBI at Lucknow, UP had in fact issued a non

bailable warrant requiring presence of the petitioner before his

court on 5th February. It was because the petitioner apprehended

arrest that he left the head quarters on 4th February, 2002 even

though his leave had not been sanctioned. This court also noted the

admitted position that the petitioner had appeared before the

Special Judge, CBI at Lucknow.

7. In view of the above, this court was of the view that the

impugned order deserved to be set aside and remitted back the

matter for consideration on this aspect. Therefore, by the order

dated 5th July, 2012, the court had set aside the order dated 30 th

March, 2007 and 2nd July, 2012 and remitted the case for hearing

on all aspects of the matter particularly on the issue of lack of

opportunity to the petitioner to defend his case.

8. On remand, the Tribunal had reconsidered the matter and by

its judgement dated 25th February, 2013 concluded that the

applicant was unjustifiably deprived of cross examining certain

witnesses and to that extent enquiry proceedings were vitiated.

The orders of the Disciplinary Authority, the Appellate Authority

and the Revisional Authority based on the inquiry report were also

held to be vitiated and the inquiry report and inquiry proceedings

held after examination of SW7 were quashed. The orders of the

Disciplinary Authority, Appellate Authority and Revisional

Authority were also quashed by the Tribunal.

9. Learned counsel for the respondent has not disputed the

correctness of the directions to the petitioner to proceed with the

inquiry afresh from stage of examination of SW8 onwards if they

so desired.

10. Inasmuch as the order of termination of the respondent's

service has been set aside, we are unable to disagree with the

directions made by the Central Administrative Tribunal. The

respondents are bound to comply with the principle of natural

justice. There is no dispute to the fact that despite having

information that the respondent would not be able to appear in the

enquiry proceedings, the enquiry officer proceeded to record the

statements of several witnesses SW8 to SW15, certainly, the

defence of the respondent would have been substantially

prejudiced. Therefore, the challenge by the petitioner by way of

the present writ petition is rejected and the writ petition is hereby

dismissed. While dismissing the writ petition, it is made clear that

the respondent shall be taken back into service only for the purpose

of completion of the disciplinary proceedings from the stage of

examination of SW8. The petitioner shall ensure that the

disciplinary proceedings and enquiry is completed expeditiously in

any case within two months from today.

11. The respondents shall participate in the proceedings and

ensure that there is no unwarranted adjournment or delay in the

same.

12. The respondents shall pass appropriate directions from the

date on which the respondent is taken back in service.

13. The writ petition is disposed of in the above terms.

GITA MITTAL, J

DEEPA SHARMA, J MAY 22, 2014 rb