RP Singh vs Union Of India And Ors

Nita Chowdhury, Member (A)

The applicant has filed this Original Application (OA) seeking the following reliefs:-

"8.1 The Hon"ble Tribunal may be pleased to quash the penalty order dt. 01.05.2013 and further order passed in review dt. 04.08.2014 affirming the order dt. 01.05.2013. As the said impugned order is totally based on erroneous belief and extraneous consideration having nothing to bear upon the statements of the PWs recorded during course of inquiry proceedings and the Tribunal may further be pleased to release all consequential benefits to the applicant withheld on account of penalty being impugned herein.

8.2 Any other orders, which this Hon"ble Tribunal may deem fit and proper, be also passed, in the interest of justice."

The brief facts of the case are the applicant - Shri R.P. Singh was issued a charge memorandum dated 11.07.2006 on the article of charge that Shri R.P. Singh, while working as Vice Principal, Avinash Chandra Chadha Govt. Sarvodaya Bal Vidyalaya, Jhilmil Colony, Delhi, during the year 2000-01 failed to ensure proper safety/custody of the under evaluated answer sheets of Accountancy subject of Class-XI in the Annual Exam-2001 and instead, he willfully got the answer sheets destroyed/sold out with ulterior motive to cover the misconduct of Sh. S.P. Handa, PGT (Commerce). As such, the applicant has failed to maintain absolute integrity and acted in a manner unbecoming of a Govt. servant. Thereafter, inquiry officer, vide its report dated 04.02.2009, has held the charge in respect of failure to ensure proper safety/custody of the under-evaluated answer-sheets of accountancy subject of Class XI of the annual exam-2001 as „proved" and the charge of ulterior motive to cover up the misconduct of Shri S.P. Handa, PGT, as „not proved" as there are no evidences available prove the same.

It is further contended that the inquiry proceedings against the applicant was conducted after his retirement on superannuation, so the proceedings were held under Rule 9 of CCS (Pension) Rules, 1972. Hence, final orders were passed by the Hon"ble President of India throughMinistry of Home Affairs vide penalty order dated 01.05.2013 which was got served upon the applicant on 08.06.2013 in consultation with the opinion of UPSC dated 26.04.2013 enclosed with the penalty order of "withholding of 10% of basic pension otherwise admissible to Shri R.P. Singh, applicant, for a period of one year" with further direction that the gratuity admissible to him may be released, if not required otherwise. Thereagaisnt, the applicant filed the OA No. 77/2014 which was disposed of by this Tribunal vide its order dated 23.01.2014 directing that the applicant is hoped to prefer review within two weeks from the date of receipt of a certified copy of this order. Accordingly, the applicant filed review application, which was rejected by the respondents and the penalty order dated 01.05.2013 has been upheld. Being aggrieved, the applicant has filed the instant OA.

The applicant has also relied upon the judgment of the Hon"ble Supreme Court in the case of R. Mahalingam Vs. The Chairman, T.N. Public Service Commission & Anr. in Civil Appeal No.1080/2013 decided on 20.02.2013 to contend that the inquiry officer must base his findings on evidence.

Opposing the OA, the respondents have filed their reply wherein it is stated there are sufficient causes and reasons for the applicant for seeking a written clarification from the higher authorities for destroying the under-evaluated answer sheets of Sh. SP Handa, PGT (Commerce) as the applicant was admittedly himself a member in this inquiry committee inquiring into the complaint of the said under evaluation case against the said teacher/PGt and as such he as both inquiry member and the Head of School, had the knowledge about the disputed matter and was required to prudently keep these under evaluated answer sheets under his safe custody but he permitted the examination in charge to dispose of/sell as per statement recorded of the said incharge.

It is further pleaded that during reviewing of the application of the applicant as well as disciplinary proceedings by the President, it was clearly established that the applicant had committed grave negligence by disposing off the under evaluated mark sheets. Had he shown alacrity and prudence, he would have preserved these thereby helping to punish the teacher who had placed with the career of the students. Such act of grave negligence in educational system should not go up unpunished.

It is pleaded the review order dated 04.08.2014, penalty order dated 01.05.2013 are merited, reasoned and speaking based on evidence adduced against him including admittance by the applicant that he disposed of/sold these answer sheets without approval/permission of the higher authorities.

It is also submitted in reply that the applicant had admittedly disposed of/sold the said under-evaluated answer sheets within 10 months in January 2002 which was under evaluated by Sh. SP Handa, PGT (Commerce) in the month of March, 2001 and the same was established in the penalty order dated 01.05.2013 and the review order dated 04.08.2014. Hence, the applicant has committed grave negligence in educational system that is required in law to go unpunished. Accordingly, a penalty of withholding of 10% of monthly pension otherwise admissible to the applicable for a period of one year commensurate to his guilt/misconduct was imposed, which was confirmed in review order dated 04.08.2004.

We have heard the learned counsel for the parties and perused the pleadings available on record.

The short controversy involved in this case is whether the enquiry held against the applicant is according to the procedure prescribed in the rules or is there any violation of principles of natural justice in conducting the inquiry.

A perusal of the inquiry report dated 12.12.2008 reveals that the inquiry officer, after conducting detailed inquiries, recording of the statements of the defence and listed witnesses and analyzing of the different documents available in the inquiry, has held that the charge of failure to ensure proper safety/custody of the under evaluated answer sheets of Accountancy subject of class-XI in the Annual Exam-2001 as „proved" and the charge of ulterior motive to cover up the misconduct of Sh. SP Handa, PGT (Commerce) as „not proved„. Hence, we do not find that the inquiry officer has reached to the aforesaid conclusion by some considerations extraneous to evidence and merits of the case.

It is further noted that the disciplinary authority, agreeing with the findings of the inquiry report, records and facts & circumstances of the case, has passed the order dated 01.05.2013 which inter alia states as under:-

"7. And whereas, on examination of the charge-sheet, inquiry report, evidence on record, facts & circumstances of the case vis-à-vis the representation dated 27.02.2009 of the Charged Officer, the following points are observed in seriatim to the issues raised in the preceding para:-

(i) The conduct of the teacher who under-evaluated the mark-sheet was still doubtful even after re-evaluation. Therefore, the CO who was aware of the whole episode being a Member of the Committee, constituted to look into the matter, is supposed to act in his best judgment and to preserve under-evaluated mark-sheets (which were later re-evaluated), as a proof of the conduct of the said teacher.

(ii) Since the CO was aware of the gravity of the under evaluation and the complaint of corrupt practices pending against Shri Handa he should have preserved the mark-sheets to unearth the truth. The destruction of mark-sheets is proof of height of negligence on the part of the CO, since it facilitated escape of the teacher who under evaluated the mark-sheets thereby playing with the career of the student.

(iii) This does not obliterate the negligent act of destruction of the mark-sheet on the part of CO.

(iv) No recommendation/direction is required for the Govt. Servant to act as per his common prudence. Further, the CO being a member of the Committee should have raised this issue.

(v) This indicates that the CO did not show any concern to bring to book the teacher who had played with the career of some students and caused so much trouble and tension by under evaluating the mark-sheets.

And whereas the case was referred to UPSC with a tentative decision of the President to impose a penalty of suitable cut in pension on the CO. The UPSC, vide their communication F.No.3/263/2012-S.I. dated 26.04.2013 (copy enclosed) rendered their advice inter alia observing that the submission of the CO that the answer sheets were sold/disposed off to make space available for the answer sheets of the new session is not convincing because the disputed answer sheets were only few and did not require much space. Although, there does not seem to be ulterior motive on the part of the CO to cover the misconduct of Shri S.P. Handa, PGT (Commerce), it is clear that the CO failed to ensure proper safety/custody of the undervalued answer sheets and did not act in a responsible manner. Instead of keeping these answer sheets in his safe custody, he gave permission for its disposal/selling. Thus the Article of Charge is party proved. The Commission, therefore, considers that the charges established against the CO constitute grave misconduct on his part and the ends of justice would be met if a penalty of "withholding of 10% (Ten percent) of monthly pension otherwise admissible to Shri RP Singh (the CO) for a period of one year" is imposed on him. The gratuity admissible to him may be released, if not required otherwise.

And whereas it is clearly established that the CO has committed grave negligence by disposing off the under-evaluated mark-sheets. Had he shown alacrity and prudence, he would have preserved these mark-sheets thereby helping to punish the teacher who had played with the career of the students. Such acts of grave negligence in educational system should not go unpunished.

And now, therefore, the President by virtue of power vested under rule 9 of CCS(Pension) Rules, 1972 has decided to accept the advice of UPSC and to impose the penalty of "withholding of 10% (Ten percent) of monthly pension otherwise admissible to Shri RP Singh (the CO) for a period of one year" and orders accordingly. The gratuity admissible to him may be released, if not required otherwise."

It is quite clear from the above that before imposing the punishment upon the applicant, the disciplinary authority, while considering the representation of the applicant dated 27.02.2009, has given sufficient reasons to impose the aforesaid penalty in accordance with the procedures prescribed in the rules. Hence, the order passed by the disciplinary authority is quite a reasoned and speaking order. It is also seen that when the applicant retried from service, the proceedings initiated against the applicant were deemed to have been continued under Rule 9 of the CCS (Pension) Rules. As such, the matter was referred to the UPSC under Article 320 of the Constitution read with regulation 5(1) of the UPSC Regulations, 1958 for their advice and on receipt of their advice, the competent authority imposed the aforesaid penalty. Hence, we do not find any procedural irregularity in this matter.

It is also noted that in compliance with the order of the Tribunal dated 23.01.2014 in OA No. 77/2014, the Review Application filed by the applicant was considered and rejected by the Hon"ble President of India vide order dated 04.08.2014 stating that the Review Application has been examined and it has been observed that the applicant has not brought any new material or evidence which was not available/could not be produced at the time of passing the order under review and which has the effect of changing the entire nature of the case. Hence, we also find that the principles of natural justice were also followed.

Thus, in the absence of any procedural illegality and irregularity, in the conduct of DE, no ground to interfere with the impugned enquiry proceedings as also the orders passed, in view of law laid down by Hon"ble Apex Court in the case of Chairman-cum-Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others (2009) 15 SCC 620.

The same view was reiterated by the Hon"ble Supreme in the case of B.C. Chaturvedi Vs. UOI 1995 (6) SCC 749 and it was held as under:-

"Service Law - Writ - Power under Article 226 of the High Court - To impose appropriate punishment - The High Court/Tribunal while exercising the power of judicial review, cannot normally come to its own conclusion on penalty and impose some other penalty. (Constitution of India, Article 226).

No doubt, while exercising power under Article 227 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of High Court's view regarding appropriate punishment is not permissible."

In view of the facts of the case and decision in the inquiry proceedings, it is clear that the proceedings have been carried out as per rules and the punishment has been given accordingly. There is no defect in the actions carried out in the disciplinary proceedings and the applicant has been given penalty after following all due procedures. The applicant has only been given penalty of "withholding of 10% of monthly pension otherwise admissible to the applicant for a period of one year" which cannot be called shockingly disproportionate in the given circumstances.

The judgment relied upon by the applicant in the case R. Mahalingam (supra) has no relevance as the applicant himself admitted that he disposed of/sold these answer sheets without approval/permission of the higher authorities.

No other point, worth consideration, has been urged or pressed by learned counsel for the parties.

In the light of the aforesaid reasons and thus seen from any angle, there is no merit and hence the OA deserves to be and is hereby dismissed as such in the obtaining circumstances of the case. No costs.