Ram Niwas Saini vs Govt. Of NCT Of Delhi & Ors.

O R D E R

“(i)

To quash and set aside impugned order dated 26.12.2013, Order dated 10.1.2014, 21.11.2014 (A-2) and order dated 23.8.2006 and direct the respondents to restore the pay and release all consequential benefits including arrears of pay;

(ii)

To declare the proceedings initiating against the applicant as illegal and direct the respondents to restore the increments of the applicants with all consequential benefits including promotion/ACP Scheme benefits and arrears of pay;

(iii)

To award exemplary costs in favour of the applicant;

(iv)

To pass such other and further orders which their lordships of this Hon’ble Tribunal deem fit and proper in the existing facts and circumstances of the case.”

Whereas, a chargesheet under Rule 14 of CCS (CCA) Rules, 1965 was issued against Sh. Ram Niwas Saini, PET vide Memorandum No. DE (50) (10) /VB/ VIG/95/2006/1207-1208 dated 23.08.2006 on the following articles of charge:-

Article-1

That Sh.Ram Niwas Saini while functioning as PET in GBSS No. 2, Tuglakabad Extn., New Delhi misbehaved with the staff of the school on 16.01.2006. In this regard, a Show Cause Notice dated 19.01.2006 was issued to him by the school V-Principal and he submitted his reply vide letter dated nil. He also misbehaved with Sh. Dhir Singh, School Chowkidar on 19.01.2006 & 22.02.2006.

As per the School V-Principal letter dated 22.02.2006, Sh. Ram Niwas Saini, PET called the Police at Telephone No. 100 on 22.02.2006 alleging that misbehavior has been done with him yesterday an he will self immolate himself.

Further, Sh. Ram Niwas Saini, PET tried to snatch the mike from Sh. G.S. Sankia, teacher on 21.02.2006 during the prayer in the presence of school V-Principal & all the school teachers, as per letter dated 22.02.2006 of school staff addressed to school V-Principal.

By acting in aforesaid manners, Sh.Ram Niwas Saini, PET has violated Rule 3 of the CCS (Conduct) Rules, 1964, his conduct being unbecoming of a government servant.

Article-II.

That Sh. Ram Niwas Saini while functioning as PET in GBSS No. 2, Tuglakabad Extn., New Delhi remained absent from duty on 22^nd, 24^th and 25^th February, 2006 without information /application and the same fact was brought to the notice of EO (Zone-25) by school V-Principal vide letter dated 25.02.2006. Sh. Ram Niwas Saini, PET has thus taken the leave as a right in utter disregard to his official duties and thus violated Rule 7 of the CCS (Leave) Rules 1972.”

“All the charges were denied by the charged Govt. servant and the enquiry proceeded in respect of charges. (Part 1 and II of 42 C)

i)

Sh. Ram Niwas Saini misbehaved with the staff of the school and Sh. Dheer Singh school chowkidar.

ii) Sh. Ram Niwas Saini PET called the Police at telephone No-100 alleging that misbehavior has been done with him yesterday and he will self immolate himself.

iii) Sh. Ram Niwas Saini tried to snatch the mike from h. G.S. Sankla, teacher.

iv) Sh. Ram Niwas Saini (PET) remained absent from duty on 22^nd, 24^th and 25^th Feb 2006 without information/application.”

Regarding charges: The presenting officer submitted the statement given by staff as witness, statement of Sh. M.I.Khan Vice Principal (Additional charge GBSS Tuglakabad) and Sh. R.S.Pandey (HOS-joined school on 01/02/2006) phto copies of attendance register.

To which the rebuttal by the Charged Officer as follows:

i)

Charges of misbehavior with staff and chowkidar baseless.

ii) Sent message for leave through a teacher.

iii) Did not make a call at telephone No.100

The following facts/logical sequence would indicate:-

Misbehavior with staff

i)

The probability of event of misbehavior by Sh. Ram Niwas Saini with the members of staff having occurred is proved (Though the staff has expressed the desire of no disciplinary action against the charged officer as the behavior of Sh.Ram Niwas Saini PET had improved. Now a span of about six year has passed since the incident took place.

Regarding Misbehavior with chowkidar Sh. Dheer Singh it

seems the charge does not hold ground as the matter was conclusively and satisfactorily settled amicably.

ii) Regarding snatching of mike from Sh. G.S. Shankla the

charge could not be proved as Mr. G.S.Sankhla denied the happening of such incident with any ill intention on the part of Sh. R.N.Saini.

iii) Regarding absence from office without leave application Sh.R.N.Saini stated that his wife gave a telephonic message to Sh. G.S.Shankla and Sh. G.S.Sankhla confirmed the fact that he informed the HOS Sh R.S. Pandey regarding this. But HOS Sh. R.S. Pandey made no mention of it in his statement. Sh. R.N. Saini was found marked absent in attendance register.

Taking into account this fact at the first instance it appears that Sh. R.N.Saini had not committed this mistake knowingly. Hence the charges framed against him are not proved conclusively beyond any shade of doubt. So charge is partially proved.

iv) Regarding ringing up at emergency No-100 Vice Principal Sh.R.S.Pandey stated that only police could ell from which No and who had made the call. As a result there is a question mark against the authenticity of the statement that Sh. R.N.Saini called the police. So the charge is not proved beyond any shade of doubt.

Conclusion of Inquiry Report

Charge 1

i)

Misbehavior with staff- proved ii) Misbehavior with Sh. Dheer Singh chowkidar does not hold ground. So not proved.

iv) Snatching of mike from Sh. G.S.Sankhla- Not proved.

v)

Calling the police at No.100 - Not proved.

Charge-II

i)

Absence from school on 22^nd, 24^th and 25^th Feb 2006 without intimation/application-Partially Proved.”

“And whereas, on careful consideration of the report of the Inquiry Officer and other records of the case including submissions made by Sh. Ram Niwas Saini, PET in his observations on the report of the inquiry, it is seen that the IO has held the charge of the CO misbehaving with the staff as proved in view of the fact that the same has been verified and upheld by the members of the staff in their statement. Moreover, the CO has also tendered an unconditional apology to the staff if some misunderstanding had cropped up due to the dialect and language difference. As regards the issue of misbehavior with Chowkidar, the inquiry report has observed that the matter was settled amicably. The very fact that the matter was settled amicably proves that some misbehavior had taken place. These facts prove that the CO is guilty of the charges framed under Article-1. Further, regarding the charge under Article-II it is observed that the IO has held charge to be partially proved on the basis of the fact that Sh. G.S.Sankhala had confirmed his statement that the wife of the CO had given a telephonic message which was conveyed to the Head of School Sh. R.S. Pandey. However, the fact remains that no written application had been submitted by the CO. It is also seen that the Head of School had marked the CO as absent for the dates mentioned in the articles of charge.

And whereas, from the perusal of record, one thing can be safely concluded that the CO has been quick to pick quarrels and has repeatedly failed to conduct himself even as per the moderate standards of civilized behavior. At points, he has admitted his own faults and felt sorry for them. To indulge in quarrels and to create nuisance within school premises does not constitute teacher like behavior. A teacher who himself indulges in misbehavior, exchange of unparliamentarily language with his colleagues and seniors can hardly be a good role model for his students. He ought to be given an appropriate penalty so as to act as a measure of restraint for future.

Now, therefore, in view of the above facts and findings of the Inquiry Officer vide report dated 22.08.2012, I, Amit Singla, Director of Education being the Disciplinary Authority hereby impose the penalty of reduction to three lower stage in the time scale of pay for a period of three years upon Sh. Ram Niwas Saini (PET) with further directions that the employee will not earn increments of pay during the said period and on the expiry of this period, the reduction will have the effect of postponing his future increments.”

“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.

2.

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."

“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.

13.

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”.

“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;

f. 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.”