Manjeet Singh vs State Of Nct Of Delhi & Ors
2018 Latest Caselaw 7282 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Reserved on:3rd December, 2018
                                        Pronounced on: 11th December, 2018
+                     LPA 670/2017 & CM No. 37318/2017
MANJEET SINGH                                              .....Appellant
                             Through:    Mr. Raj Kamal, Advocate with Mr.
                                         Varun Tyagi, Advocates.

                             versus

STATE OF NCT OF DELHI & ORS                ....Respondents
                  Through: Mr. Naushad Ahmed Khan, ASC,
                            Civil, GNCTD for Respondent No.1.
                            Mr. Jasmeet Singh, Advocate with
                            Mr. Saurabh Tiwari, Mr. Srivats
                            Kaushal & Mr. Aditya Madaan,
                            Advocates for Respondent Nos. 3 to
                            6.

CORAM: JUSTICE S. MURALIDHAR
       JUSTICE SANJEEV NARULA

                                      JUDGMENT

SANJEEV NARULA, J

1. The present appeal under Clause 10 of the Letters Patent is directed against the impugned judgment dated 14th February, 2017 whereby the learned Single Judge has dismissed the Writ Petition No. 8970/2008.

2. In the impugned judgment, the learned Single Judge has confirmed the order passed by Delhi School Tribunal (hereinafter referred to as „DST‟), thereby approving the imposition of penalty on the Appellant of removal from services by the Respondent No.4.

Factual Background

3. The Appellant was appointed as Physical Education Teacher (PET) with Guru Harkrishan Public School, Tilak Nagar, Delhi (hereinafter referred to as „Respondent No.4‟). His appointment was initially on probation and later he was confirmed on 3rd April, 2001.

4. On 17th April, 2006, memorandum of chargesheet along with the statement of article of charge was issued by Respondent No. 4, that reads as under:-

"STATEMENT OF ARTICLE OF CHARGE

17th April 2006

1. You, Shri Manjeet Singh while working as P.E.T. in the G.H.P.S. Tilak Nagar, New Delhi-110018, stole the staff list duly signed on 14.07.2005 by the teaching staff and a request letter signed by S. Baldev Singh, P.E.T., from his drawer and used the same as a protest against the school management under Baldev Singh's signatures without consent of the staff and S. Baldev Singh, P.E.T. (Staff Secretary) and send these letter unauthorizedly to the Director of Education, Govt. of NCT of Delhi against the Management.

2. You, Shri Manjeet Singh while working as P.E.T. in the G.H.P.S. Tilak Nagar, New Delhi-110018, had called the police on 24th August 2005 in the school premises during the school hours i.e. 1.00 P.M. without getting permission from the school authorities and without the knowledge of the school authorities. It spoiled the school reputation and brought humiliation to the students as well to the staff.

3. You, Shri Manjeet Singh while working as P.E.T. in the

G.H.P.S. Tilak Nagar, New Delhi-110018, came late at 10.06 A.M. instead of usual time 07.30 A.M. on 26th August 2005 for which you did not give message in the morning to the school authorities and marked your attendance without getting permission or giving reasons to the Vice Principal of the school for your late arrival.

4. You, Shri Manjeet Singh while working as P.E.T. in the G.H.P.S. Tilak Nagar, New Delhi-110018, were called on 26.08.2005 first by the Vice Principal and then also by the Manager to know the reasons of your aforesaid conduct but you straightway refused to appear before both of them.

5. You, Shri Manjeet Singh while working as P.E.T. in the G.H.P.S. Tilak Nagar, New Delhi-110018, did not attend the staff meeting on 30"^ August 2005 scheduled at 1.30 P.M., which was called by the management with the instruction that it is compulsory for all staff member to attend the said meeting. Not only that you had also instigated the other staff members not to attend the said meeting on that day.

6. You, Shri Manjeet Singh while working as P.E.T. in the G.H.P.S. Tilak Nagar, New Delhi-110018, proceeded on leave without getting sanctioned the earned leave for the period 1st September 2005 to 2nd September 2005 by simply submitting your application for grant of E.L. on 1st September 2005 itself with the dealing assistant while you were required to get the earned leave sanctioned in advance. Moreover you have asked for E.L. for the aforesaid period on the false ground that you have to go to the Hon'ble High Court while you had no case to attend at on these date.

Thus the above acts of omission and commission on the part of Shri Manjeet Singh, P.E.T., while functioning as the employee of the management of the School amounts to unbecoming of an employee of the School thus contravened provisions of Rule 123 (1) (a) (i), (vii), (xvi), (xvii), (c) (i) & (ii) of Delhi School Education Rules 1973."

5. On 2nd May, 2006, the Appellant submitted a representation/statement of defence to the Article of Charges, refuting all the allegations.

6. The Disciplinary Authority considered the reply and decided to conduct an enquiry in accordance with the Delhi School Education Rules, 1973 (DSER). Accordingly, on 15th June, 2006, Respondent No. 4 appointed an Enquiry Officer to conduct an enquiry against the Appellant in respect of the memorandum of charge referred above.

7. On 19th June, 2006, Respondent No. 4 informed the Appellant about the appointment of the Enquiry Officer. The Enquiry Officer also intimated the Appellant about the enquiry proceedings and directed him to appear before him on 27th June, 2006.

8. Both the letters dated 19th June, 2006 as well as 22nd June, 2006 were duly served upon the Appellant. However, the Appellant did not join the enquiry proceedings on the said dates. Thereafter, hearing was adjourned to 27th June, 2006. The Appellant again elected not to appear before the Enquiry Officer. The enquiry proceedings were then adjourned to 30th June, 2006. The Appellant failed to appear before the Enquiry Officer even on 30th June, 2006. Proceedings were then adjourned to 4th July, 2006. It is noteworthy that for the first time the Appellant appeared before the Enquiry Officer on 4th July, 2006.

9. The Enquiry Officer, in the proceedings dated 4th July, 2006 has noted

Appellant‟s presence. He also notes that Appellant did not cooperate in the enquiry proceedings despite repeated requests. He barely stayed for 4-5 minutes and thereafter left the enquiry proceedings.

10. Thereafter the proceedings continued ex-parte. On 10th July, 2006, ex- parte evidence was recorded before the Enquiry Officer. After the conclusion of the enquiry, on 13h September, 2006, the Enquiry Officer submitted a report to the disciplinary authority.

11. On 18th September, 2006, enquiry report was considered by the disciplinary authority and vide letter dated 19th September, 2006, a copy of the inquiry report was forwarded to the Appellant calling upon him to send his comments/representation.

12. The Appellant chose not to respond. With the Appellant having failed to give his comments/representation within the period stipulated in letter dated 19th September, 2006, a meeting of the disciplinary authority was held on 18th October, 2006. Members of the disciplinary authority unanimously decided and proposed punishment of removal from service under Rule 117 (B)3(iii) of DSER. Vide letter dated 18th October, 2006, the Appellant was given an opportunity to give his comments/representation on the proposed punishment within a period of 7 days from the receipt of the said letter. He submitted a representation on 26th October, 2006 and the same was considered by the disciplinary authority in its meeting held on 27th October, 2006. The reply of the Appellant was found unsatisfactory and accordingly on 28th October, 2006, the managing committee confirmed the decision of

the disciplinary authority imposing penalty of removal from service on the basis of the enquiry report dated 12th September, 2006.

13. The order of removal dated 28th October, 2006 was served upon the Appellant.

14. Aggrieved with the aforesaid order of removal, Appellant preferred an appeal before DST and challenged the same. The appeal was dismissed vide order dated 29th August, 2008 and the order of removal was confirmed.

15. Dissatisfied with the order of DST, Appellant preferred the Writ Petition being No. 8970/2008. By the impugned judgment dated 14th February, 2017, the Writ Petition was also dismissed against the Appellant. The order of dismissal of the Writ Petition is challenged in the present appeal.

Submissions

16. Mr. Raj Kamal, learned counsel appearing on behalf of the Appellant, has assailed the order of the learned Single Judge, essentially on the ground of denial of opportunity to contest the enquiry proceedings.

17. The main plank of his argument is that the learned Single Judge has failed to appreciate that the Respondent-School has violated the principles of natural justice, by not affording to the Appellant a fair and proper opportunity to contest the enquiry proceedings and defend himself. Learned counsel argued that Appellant was prevented from attending the

enquiry proceedings and that he made repeated complaints to the Respondent No.4 as well as to the police, but the Respondent-School failed to take note of the same. He urged that the Enquiry Officer was biased and there has been a complete miscarriage of justice.

18. During the course of the arguments, learned counsel also pleaded that the Appellant has filed an application bearing CM No. 37318/2017, seeking permission to file additional documents. The Appellant‟s counsel submitted that the documents enclosed with the aforesaid application were particularly relevant for the present case, as the same would show that Respondent No.4 had prevented the Appellant from contesting the enquiry proceedings. He thus prayed that the said documents may be taken on record. He also urged that the order of removal from service should be set aside since Respondent No.4 had deliberately not allowed the Appellant to appear before the Enquiry Officer.

19. Mr. Jasmeet Singh, learned counsel appearing on behalf of the Respondent No.4, on the other hand, urged that the Enquiry Officer had duly intimated to the Appellant about the enquiry proceedings. He urged that the Appellant voluntarily abstained himself from appearing before the Enquiry Officer. He further contended that the Appellant was undoubtedly aware of the enquiry proceedings and he cannot at this stage turn around and urge that there has been a denial of an opportunity to contest the case.

20. Mr. Jasmeet Singh further argued that the enquiry proceedings dated 4th July, 2006, specifically records the presence of the Appellant and therefore,

it clearly transpires that the Appellant was all throughout aware of the enquiry proceedings. He further emphasized that the enquiry proceedings were conducted in a fair manner. Elaborating this submission, he urged that even though the Appellant did not appear before the Enquiry Officer on 22nd June, 2006, 27th June, 2006 and 30th June, 2006, the proceedings were not concluded. The Enquiry Officer afforded yet another opportunity to the Appellant to appear before him on 4th July, 2006. This indicated the fairness on the part of the Enquiry officer. On 4th July, 2006, the Appellant did not cooperate in the enquiry proceedings, yet photocopies of several letters/memos were made available to him. He further urged that learned Single Judge has carefully analyzed the contentions raised by the Appellant and has rightly concluded that the version of the Appellant is not credit worthy. There is no infirmity in the findings arrived at by the learned single Judge and thus there is no ground that warrants interference by this Court.

21. Mr. Jasmeet Singh also presented before this Court the original record pertaining to the enquiry proceedings and argued that the letters enclosed with CM No. 37318/2017 were not part of the record maintained by the school. He urged that the said documents were being shown to the court for the first time and cannot be permitted to be taken on record in the present appeal. The application is liable to be dismissed.

Analysis and Findings

22. The main thrust of the arguments of the Appellant is with respect to violation of the principles of natural justice. The Appellant has repeatedly asserted that he was not afforded proper and fair opportunity to attend the

inquiry proceedings and defend himself. This submission is bereft of merit and completely erroneous to say the least. The original record produced before this Court has ample material, indicating that the Enquiry Officer gave several opportunities to the Appellant to join the enquiry proceedings. In fact, on 4th July, 2006, the Appellant presented himself before the Enquiry Officer. Thereafter, concededly, the Appellant stayed away and the proceedings continued ex-parte.

23. Appellant‟s contention is that he was physically prevented from attending the departmental proceedings. In support of this contention, Appellant‟s counsel was called upon to show any document on record, wherein the Appellant had raised such a plea. The counsel stated that there was, in fact, no such document on record before the DST and before the learned single Judge; but he prayed that the Appellant had now been able to lay his hands on few such documents that were enclosed with CM No. 37318 /2017.

24. On further enquiry by the Bench as to what prevented the Appellant to produce the said documents before the DST or the learned Single Judge, no proper explanation was forthcoming. Appellant‟s counsel only reiterated the statements made in CM No. 37318/2017. His contention is that the original documents were handed over to his previous counsel. The said counsel had taken up judicial service in Rajasthan during the pendency of the writ petition. The original documents were thus misplaced and recently when the Appellant visited his previous counsel in Rajasthan, after some efforts he was able to obtain the copies of the documents from his office.

25. The explanation given is completely frivolous. The Appellant had several opportunities to produce the aforesaid record. At this stage, after 12 years, the Appellant cannot be permitted to set the clock back on a flimsy ground that documents were not in his possession and were misplaced. If indeed, Appellant was deprived of an opportunity to submit his defence before the Enquiry Officer and this was his primary ground of challenge, he ought to have acted diligently. Apart from making bald averments that documents were misplaced, there is no plausible explanation for the gross delay of 12 years to justify the inaction. Such a casual approach cannot be countenanced. Moreover, it is not for this Court in this LPA to allow the Appellant to produce additional evidence to enable him to supplement his factual pleas. In the present case, the Appellant had admittedly failed to produce any evidence to indicate that he was physically prevented from attending departmental proceedings before the Tribunal and even before the learned single Judge. Therefore, we do not find any cogent ground to allow the application and take the documents on record and accordingly C.M.No.37318/2017 is dismissed.

26. Moreover, the Appellant's contention that he was physically prevented from joining the disciplinary proceedings appears to be an afterthought. He alleges that on 4th July, 2006, the Enquiry Officer made him stand outside the room where the proceedings were conducted, thereby depriving him an opportunity to submit his defence. If this was true, the Appellant would have immediately taken some action in this regard. The first communication that the Appellant seeks to rely upon in support of this plea,

is a letter dated 7th August, 2006. The alleged letter was never brought on record (before DST or the learned single Judge) and is admittedly of a date after a period of 30 days from the date of the alleged incident. Pertinently, the original record produced by the learned counsel for the Respondent- school, also does not have any such letter on record.

27. The learned Single Judge has rightly concluded that there is no substance in the arguments of the Appellant that he was not aware of the enquiry proceedings or that he was physically prevented to appear before the Enquiry Officer. The Appellant had sufficient opportunities to contest his case and there is absolutely no ground to allege violation of principles of natural justice.

28. The charges have been duly proved before the Enquiry Officer. The findings of fact had been gone into by the DST and further confirmed by the learned Single Judge and do not merit any interference by the Court. On the issue of proportionality of the punishment, we have carefully examined the articles of charge. Article I is a serious charge of theft. For such a charge, penalty of removal does not seem to be unreasonable. It is no longer res-integra that merely because the court feels that the penalty should have been lighter than one imposed, this by itself is not a ground to interfere with the discretion of the disciplinary authority. The scope of judicial review is limited when it comes to examining the proportionality of the punishment. The discretion lies with the disciplinary authority and the courts normally do not interfere in the exercise of such discretion unless the penalty is shockingly disproportionate. In the present case, Article I of the statement

of Article of charge is a charge of serious delinquency on the part of the Appellant and therefore we would like to concur with the view of the learned single Judge on this aspect. Thus we have no hesitation in holding that the Appellant has conducted himself in a manner which would call for the imposition of penalty of removal from service.

29. In view of the above, the present appeal has no merit and is accordingly dismissed.

CM APPL. 37318/2017 ( permission to file additional document)

30. The application seeking permission to file additional documents is dismissed for the reasons discussed in the judgment.

SANJEEV NARULA, J

S. MURALIDHAR, J DECEMBER 11, 2018/ss