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DR. V.K. SARASWAT versus CENTRAL ADMINISTRATIVE TRIBUNAL AND OTHERS

High Court of Judicature at Allahabad

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Dr. V.K. Saraswat v. Central Administrative Tribunal And Others - WRIT - A No. 52786 of 2005 [2007] RD-AH 11900 (13 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

  Reserved Court No.9

Civil Misc. Writ Petition No. 52786 of 2005

 Dr..V.K. Saraswat

Versus

     Union of India and others

Hon.V.M.Sahai, J.

Hon.Shishir Kumar, J.

Service of notice on the respondent no.1 is deemed to be sufficient under the Rules of the Court.

The petitioner was appointed as Post Graduate Teacher (PGT) on 17.9.1986 at Kendriya Vidyalaya Valsura, District Jam Nagar, Gujrat.  He was transferred to Moradabad in December 1989.  The petitioner had been nominated for prestigious Science teacher award which is given by the Government of India to those teachers whose works were exemplary in their field.  He qualified All India Competitive Examination for the post of Principal in the year 2002-03 and 2004.  He was also applicant for the post of Principal M.D. Jain Inter College, Agra and Smt. Punia, Principal Kendriya Vidyalaya, Mathura Cantt., Mathura recommended and appreciated the work of the petitioner on 18.9.2000. The academic as well as service record of the petitioner was excellent.  On 8.12.2000 a complaint was made by Smt. Santosh Punia against the petitioner and a written explanation was sought from the petitioner.  A memo had been issued to the petitioner on 7.12.2000 which was served on the petitioner on 8.12.2000 seeking his explanation.  The petitioner gave a written reply on 9.12.2000 wherein he had written that all programmes were conducted under the written orders of the Principal. A charge sheet was served  under rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 (in brief Rules 1965) on the petitioner on 6.2.2001 levelling three charges against him.  No document was provided along with the charge sheet.  The petitioner was suspended by order dated 8.12.2000 and thereafter a preliminary enquiry was conducted by Sri A.K. Gautam, Principal, Kendriya Vidyalaya,  Mathura Refinery, Mathura behind the back of the petitioner.  Sri A.K. Varshney was appointed as Enquiry Officer to conduct the enquiry with regard to charges levelled against the petitioner.  Sri D.K. Tandon was appointed as presenting officer for Kendriya Vidyalaya and the petitioner was allowed to have Sri Brijesh Pandey as defence assistant for conducting the enquiry.  On 27.3.2001 Sri D.K. Tandon filed an application to call Sri R.S. Saraswat, Vice Principal, Sri R.P. Singh, Sri Kali Charan and Sri T.P. Tiwari all working as teachers in the institution as prosecution witnesses.  In the enquiry Sri R.S.Saraswat, Sri R.P. Singh, Sri Kali Charan and Smt. Santosh Punia, the Principal of the institution appeared as witnesses and the presenting officer on 30.4.2001 moved an application for not presenting Sri T.P. Tiwari as prosecution witness. The petitioner on 2.5.2001 moved an application for providing documents and also gave a list of additional documents to be provided to him. 13 documents were in the custody of the Principal but they were not provided to the petitioner. With regard to document no.10 and 11 the petitioner was permitted to inspect them.  Document no.2 and 12 were not permitted to be supplied to the petitioner by the Enquiry Officer and document no.4,5,6 and 13 were not available with the Principal as informed by the Enquiry Officer on 18.5.2001.  The petitioner's application for summoning Sri T.P.Tiwari as witness was rejected by the enquiry officer.  The petitioner submitted before the enquiry officer that there is contradiction in the statement of Sri R.N.Srivastava and Sri R.P. Singh  and Sri Kali Charan and they have not supported the version of the charge sheet.  The reply was given by the petitioner on 8.10.2001.

The Assistant Commissioner, Lucknow Region, Lucknow on 19.10.2001 passed an order removing the petitioner from service and the period of suspension from 8.10.2000 to 18.10.2001 was treated as non duty and the amount of payment for the said period was restricted to the subsistence allowance already paid to the petitioner.  Thereafter the petitioner preferred an appeal under  Article 80 of Education Court read with Rules 1965 before the Joint Commissioner (Investigation), respondent no.3.  By order dated 12/14.6.2002 the appellate authority dismissed the appeal of the petitioner and confirmed the penalty imposed by the disciplinary authority.The petitioner filed Original Application No. 865 of 2002 before the Central Administrative Tribunal, Allahabad Bench, Allahabad. The tribunal dismissed the original application by order dated  6.5.2005.  The order of the tribunal,  appellate authority and the disciplinary authority have been challenged by the petitioner in this writ petition.

In the counter affidavit filed by Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, Lucknow it has been stated that the memo dated 7.12.2000 was received by the petitioner for improving his work and behaviour but on 8.12.2000 the petitioner came to the Principal's chamber and misbehaved and used unparliamentary language to the Principal, Assistant Commissioner as well as Sri Atal Bihari Bajpayee, the then Hon'ble Prime Minister of India.  When the Principal submitted her full report  along with the signatures of Vice Principal to the Assistant Commissioner, he suspended the petitioner and attached him to Kendriya Vidyaalaya Azamgarh.  A preliminary enquiry was conducted by Sri A.K. Gautam on 13.12.2001 on three charges but departmental disciplinary proceedings were initiated and after full opportunity of hearing to the petitioner and after compliance of the principles of natural justice the petitioner had been removed from service.  The appeal of the petitioner had been dismissed by the appellate authority and the tribunal had rejected the Original Application of the petitioner.  Therefore, the removal of petitioner from service is liable to be confirmed by this court. In the rejoinder affidavit filed by the petitioner the allegations made in the counter affidavit had been denied.

We have heard Sri Ashok Khare, learned senior counsel assisted by Sri Sudhir Dixit and Sri D.P. Singh learned counsel appearing for the respondents 2,3,4 and 5.

Learned counsel for the petitioner has urged that the charges against the petitioner could not be proved as there is no correlation between the charges and the report of the enquiry officer.  Therefore, the findings of the enquiry officer is based on no material or evidence and on the basis of such an enquiry report the disciplinary authority could not have punished the petitioner and the order of the appellate authority as well as the tribunal is illegal.  He has further urged that the principles of natural justice was not complied with nor the documents demanded by the petitioner were supplied to him, witness Sri T.P. Tiwari was not summoned and examined by the enquiry officer inspite of written application given by the petitioner.  Therefore, the entir proceedings were vitiated.  He has lastly urged that the petitioner is not guilty of misbehaviour, threatening and using unparliamentary language, as well as misconduct and insubordination which is demonstrated by the statements recorded during the enquiry proceedings and as such the punishment of removal from service awarded by the respondents is too harsh and is laible to be quashed.

On the other hand, learned counsel for the respondents has supported the impugned order and has urged that the petitioner is guilty of the charges and has rightly been removed from service; the petitioner is not entitled to any leniency.  It has been further urged that the departmental disciplinary proceedings was carried on in accordance with the principles of natural justice  and the writ petition filed by the petitioner has no merit and is liable to be dismissed.  

The Constitution Bench of the apex court in Union of India v H.C. Goel, AIR 1964, SC 364, in paragraph 20 has held as under:

"...It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed or is otherwise dealt with so as to attract Art. 311(2), the High Court under Art.226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all.  It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence..."

The apex court in Syed Rahimuddin v Director General, CSIR and others, AIR 2001 SC 2418, in paragraph 5 has held as under:

"5. The further grievance that the findings of the Enquiring Officer are findings on no evidence is belied by the very report of the Enquiry Officer. The Enquiring Officer has dealt with the Articles of charge chronologically and the relevant materials on the basis of which the ultimate conclusion is arrived at.  It is well settled that a conclusion or a finding of fact arrived at in a disciplinary inquiry can be interfered with by the Court only when there is no materials for the said conclusion; or that on the materials, the conclusion cannot be that of a reasonable man..."

In another decision of Sher Bahadur v Union of India and others, (2002) 7 SCC 142, the apex court in paragraph 7 has held as under:

"7. It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him.  Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence."

Learned counsel for the respondents has vehemently urged that exercise of jurisdiction under Article 226 of the Constitution this court could not act as appellate authority.  Its jurisdiction is circumscribed by limits of judicial review to correct error of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an Appellate Authority.  He has placed reliance on the decision of the apex court in Lalit Popli v Canara Bank and others, (2003) 2 UPLBEC 1673 wherein it has been held that where the findings of the disciplinary authority are based on same evidence, the court or tribunal cannot re-appreciate the evidence and substitute its own findings.  The court further held that while exercising writ jurisdiction the court will not reverse finding of the enquiry officer on the ground that the evidence adduced before it is insufficient, if there is some evidence to reasonably support the conclusion of the enquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding.  The Enquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.

Learned counsel for the respondents has also relied on the decision of the apex court in Divisional Controller, KSTRC (NWKRTC) v A.T. Mane, [2004(103) FLR 428], Govt. of A.P. and Others v Mohd. Nasrullah Khan, (2006)2 SCC 373, R.S.Saini v State of Punjab and others, 1999(6) SC 507,

(2003) 2 UPLBEC 1673 Lalit  Popli Vs. Canara Bank and others.

Taking support of the aforesaid decisions the learned counsel for the respondents has submitted that as there is no indication or it has been shown from the record that there is any infirmity in the disciplinary enquiry and the principle of natural justice has not been followed and the petitioner was not given proper opportunity during the course of enquiry to cross examine the witnesses and to adduce the evidence. Disciplinary authority taking into consideration all the relevant charges and documents has awarded the punishment, therefore, while exercising the jurisdiction under Article 226 of the Constitution of India this Court cannot act as an appellate authority.  Its jurisdiction is circumscribed by limits of judicial review to correct error of law or procedural errors leading to manifest injustice or violation of principles of natural justice.  Judicial review is not akin to adjudication of the case on merits as an Appellate Authority.  

We have considered the submissions as well as the decision relied upon by the learned counsel for the petitioner.

The learned counsel for the petitioner has preliminary contended that the statements of prosecution witnesses suffer from inherent contradiction and are essentially based on hearsay evidence of a Group 'D' employee  who was not allowed by the enquiry officer for deposition and cross examination by the defence assistant of the applicant.  The proper hearing was not afforded by respondent No.2 to the petitioner.  Once Sri T.P.Tewari, a prosecution witness, though present during the departmental  proceedings, was not  presented in spite of the request made by the defence assistant to present him as a witness.  The punishment imposed is grossly disproportionate to the misconduct committed by the petitioner.

On the other hand, the respondents submitted that the petitioner has been given proper and reasonable opportunity to put forth his defence before finalizing the enquiry.  It has been denied that the principal has pressurised the defence witnesses.  According to the respondents the finding on the basis of evidence by the enquiry officer is totally impartial.  From the perusal of the record, we does not come across that the enquiry officer was in any way biased or prejudiced against the petitioner and there is any illegality or irregularity  or violation of principles of natural justice during the departmental proceedings right up to the appellate stage.  The judgement cited on behalf of the petitioner that the punishment of termination of service is disproportionate to the charge.  Dayal Kushwaha Vs. State of U.P. and others of Allahabad High Court in Writ Petition No. 27201 of 2001 decided on 18.2.2003, relied upon by the petitioner, the environment of district jail is totally different from the environment of an educational institution.  In educational institution the teachers are expected to maintain dignity and decorum and to display exemplary conduct before the students.

On the other hand, the Apex Court in R.S. Saini's case (Supra), has held that Court or the Tribunal is not expected to reverse the findings of the enquiry officer on the ground that the evidence adduced before them was insufficient because the enquiry officer is the sole judge of the fact so long as there is some evidence to substantiate the findings.  In B.C. Chaturvedi Vs. Union of India and others, reported in Judgement Today, 1995 (8), Supreme Court, 65 the scope of judicial review as indicated by stating that review by the Court is of decision making process and where the findings of the superior  authority are based on evidence, the Court or the Tribunal cannot re-appreciate the evidence and substitute its own finding (see paragraph 14).  The scope of judicial review is very limited to correction of errors of law or procedure leading to manifest in justice or violation of principles of natural justice.  The Court or the Tribunal cannot re-appreciate  the evidence and substitute its own finding.  The similar view has been taken in Lalit Popli Vs. Canara Bank and others (Supra).

The petitioner held an office of trust as he is a teacher in an educational institution.  It is now well settled in law that in a matter of disciplinary proceedings the High Court exercises a very limited power.  The Apex Court in case of Government of Andhra Pradesh Vs. Mohd. Nasrullah Khan, reported in Judgement Today 2006, (2) Supreme Court Page 82, L.K.Verma Vs. H.M.T. Ltd. and another reported in Judgement Today 2006 (2) Supreme Court Page 99, Karnataka Bank Ltd. Vs. A.L.Mohan Rao reported in (2006) 1 Supreme Court Cases, 63 and Hombe Gowda Educational Trust and another Vs. State of Karnataka & others reported in Judgement Today 2005 (10) Supreme Court, 598 has held that the High Court exercises a very limited power in the disciplinary proceedings.  The Apex Court in Damoh Panna Sugar Regional Bank and another Vs. Munna Lal Jain reported in Judgement Today 2005(1) Supreme Court Page 70 has held that when the High Court  intends to interfere with the quantum of punishment on the ground that the same is shockingly disproportionate, it must record reasons for coming to such a conclusion.  In view of the aforesaid judgements by the Apex Court, it is now well settled  that unless and until it is brought out from the record that the disciplinary proceedings against the petitioner is not consonance of procedure and there is a procedural flaw, this Court is having no jurisdiction to exercise the power of judicial review.  

In case of Sancha alakshri and another Vs. Vijay Kumar Raghuveer Prasad Mehta, reported in AIR 1999 Supreme Court, 578 it has been observed by the Apex Court that a teacher is expected to maintain exemplary conduct and higher standard of honest and integrity in view of the position he holds.  As regards the submission made on behalf of the petitioner that the disciplinary authority without considering the reply of the petitioner only on the basis of the enquiry report had passed an order without assigning any reason.  The Apex Court in National Fertilizers Ltd. and another Vs. P.K.Khanna reported in (2005) Supreme Court Cases, 597 has held that in case the disciplinary authority agrees with the findings of the enquiry officer and accepts the reasons given by him in support of such findings,  it is not necessary to record reasons. The aforesaid submission of the learned counsel for the petitioner is also not acceptable.  

Swami's compilation of Code of Conduct for the teachers, Chapter VI para 55 which relates to teaching staff of Kendriya Vidyalaya, the teacher has to maintain the dignity and to put an example. Sub para 34 is as follows:-

"34. Every teacher shall at all times

      (i) maintain absolute integrity,

     (ii) maintain devotion to duty,

   (iii) do nothing which is unbecoming of an employee of the Sangathan.

We are of the considered opinion that in case the disciplinary authority is of the opinion that it is based beyond doubt the charges levelled against the charged officer and it has been proved during the departmental enquiry and on the basis of material on record comes to a conclusion whether or not the delinquent has committed misconduct.  Even otherwise, the enquiring authority is the sole judge of the fact so long as there is some evidence, otherwise.

As now it is well settled considering the limited scope we will have to bear in mind the rule that the Court while exercising a writ jurisdiction will  not reverse the finding of the enquiry authority on the ground that the evidence adduced before it is insufficient.  If there is some evidence to reasonably support the conclusion of the enquiry authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding.  The enquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the findings and an adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceeding.  The narration of the charges and the reasons of the enquiring authority for accepting the charges, as seen from the record, shows that the enquiry has based its conclusions on materials available on record after considering the defence put forth by the petitioner and these decisions, in our opinion, have been taken in a reasonable manner and objectively.  The conclusion arrived at by the enquiring authority cannot be termed as either being perverse or not based on any material nor it is a case where there has been any non-application of mind on the part of the enquiring officer.

In the peculiar facts and circumstances of the case as the petitioner being teacher in the educational institution and involved himself to misbehave with a lady principal, we are of the opinion that there is no occasion by this court while exercising the powers under Article 226 of the Constitution of India to differ from the finding recorded by the disciplinary authority as well as by the appellate authority.

In view of the aforesaid fact, we see no justification to interfere in the writ petition.  The writ petition is devoid of merits and is hereby dismissed.

There shall be no order as to costs.

Dated :  July  13     , 2007

SKD    


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