Partly allowed

Jose Augustine v. Commissioner,Kvs

Kerala HC9 Dec 2013WP(C)/8292/2008

Case brief

AI extract

What is this about?

The High Court held the original punishment of pay reduction with postponement of future increments was grossly disproportionate. Quashing the offending clause, the Court modified the punishment to a reduction of pay by two stages for two years without increment bar but without the effect of postponing future increments upon expiry.

What did the court decide?

The clause stating that the reduction would have the effect of postponing future increments upon expiry was deleted from the punishment orders.

Jose Augustine Vs Commissioner,Kvs — Pension and Retirement Benefits | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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MONDAY, THE 9TH DAY OF DECEMBER 2013/18TH AGRAHAYANA, 1935

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WP(C).No. 8292 of 2008 (Z)

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OA NO.672/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 30-11-2007

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PETITIONER(S):

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JOSE AUGUSTINE,AGED 47 YEARS, S/O. AUGUSTINE, PRIMARY SCHOOL TEACHER, KENDRIYA VIDYALAYA NO.I, HEMAMBIKA NAGAR, PALAKKAD, RESIDING AT HEMAMBIKA NAGAR, PALAKKAD DISTRICT.

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BY ADVS.SRI.T.C.GOVINDA SWAMY

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SMT.D.HEERA SMT.R.R.REJITHA

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RESPONDENT(S):

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1. THE COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN NO.18, INSTITUTIONAL AREA, SHAHEED JEET SINGH MARG, NEW DELHI.

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2. THE JOINT COMMISSIONER (ADMN), KENDRIYA VIDYALAYA SANGATHAN NO.18, INSTITUTIONAL AREA, SHAHEED JETT SINGH MARG, NEW DELHI.

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3. THE ASSISTANT COMMISSIONER, REGIONAL OFFICE, KENDRIYA VIDYALAYA SANGATHAN, I.I.T. CAMPUS, CHENNAI-36.

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4. THE PRINCIPAL, KENDRIYA VIDYALAYA, PALAKKAD.

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BY ADV. SRI. V.V.ASOKAN, SC, KENDRIYA VIDYALAYA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-2013, ALONG WITH WPC. NO.9661/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.8292/2008 (Z)

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COPY OF THE ORDER IN O.A.NO.672/2006 DTD. 30/11/2007 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

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P2: COPY OF THE O.A.NO.672/2006 ALONG WITH ITS ANNEXURES FILED BY THE PETITIONER.

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P3: COPY OF THE REPLY STATEMENT DTD. 1ST NOVEMBER 2006 FILED BY THE RESPONDENTS IN O.A.MO.672/2006.

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P4: COPY OF THE REJOINDER IN O.A.NO.672/2006 DTD. 25/11/2006 FILED BY THE PETITIONER.

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P5: COPY OF THE REPORT OF THE INQUIRY OFFICER COMMUNICATED UNDER MEMORANDUM BEARING NO.9-ESTT/JA/2003-KVS(CHER)18041 DTD. 31/08/2005.

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RESPONDENT'S EXHIBITS: N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

T.R. RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ.

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~~~~~~~~~~~~~~~~~~~~~~~~~~~

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W.P.(C).Nos.8292/2008 & 9661/2008 ~~~~~~~~~~~~~~~~~~~~~~~~~~~

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Dated this the 9^th day of December, 2013

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J U D G M E N T

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Ramachandran Nair, J.

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Both these matters arise from disciplinary proceedings initiated

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against the respective petitioners. Both are husband and wife. The petitioner in W.P.(C). No.8292/2008 has been working as a Primary School

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Teacher in Kendriya Vidyalaya No.1, Palakkad and his wife, who is the

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petitioner in W.P.(C).No.9661/2008, has been working as the

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Headmistress of the same school at the relevant time.

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We heard the learned counsel for the petitioners Shri T.C.Govindaswamy and learned Standing Counsel for the respondents

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Shri V.V.Asokan.

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As against the petitioner in W.P.(C).No.8292/2008, the

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allegation is that he has inflicted corporal punishment on Master Akash

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John, student of Class V B during school hours of 28/10/2002. His father

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had complained to the Principal that the child was hit on his back by fist by

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W.P.(C).Nos.8292/2008 & 9661/2008

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the petitioner. As against the petitioner in W.P.(C).No.9661/2008, the

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allegation is that the petitioner had inflicted corporal punishment on Master

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Akash John, the same student of Class V B on 29/10/2002 during lunch

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break. The complaint was that the child was beaten with a stick. At the outset, learned counsel Shri T.C.Govindaswamy submitted that it is a case of no evidence in the inquiry. As against the petitioner in W.P.(C). No.8292/2008, even though a complaint was filed by the father, on the day

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of inquiry, i.e. on 26/02/2004, he submitted before the Inquiry Officer that he has no complaint at present and he had already withdrawn the same in writing on 27/09/2003. Our attention was drawn to the deposition of the father which is available in page 51 of the paper book as Annexure-6. It is therefore submitted that actually there is no legal evidence in the matter.

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But the Inquiry Officer has chosen to find the petitioner guilty without any justification. Apart from the father, one Shri Sanal Kumar, Secretary, PTA

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was cited as witness but he was not present before the Inquiry Officer.

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W.P.(C).Nos.8292/2008 & 9661/2008

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The student was also not examined. It is therefore submitted that as the

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complaint was withdrawn and nobody has deposed in support of the

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complaint before the Inquiry Officer, it is a case of no evidence and, therefore, the Inquiry Officer has found the petitioner guilty without any justification. It is also submitted that the punishment imposed is too disproportionate to the gravity of the alleged offence. It is also submitted

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that the Tribunal has not correctly considered the legal aspects.

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As against the petitioner in W.P.(C).No.9661/2008, it is pointed

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out by the learned counsel for the petitioners that the student had appeared before the Inquiry Officer who also did not support the allegation

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and he had deposed that he had totally forgotten the incident and that his

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father had withdrawn the complaint. Another witness said that he had not

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heard any incident on the crucial day.

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The report of the Inquiry Officer as regards the petitioner in

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W.P.(C).No.8292/2008 reveals that he was of the view that even though

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W.P.(C).Nos.8292/2008 & 9661/2008

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the father had withdrawn the complaint, he did not dispute the details in the

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complaint. Apart from the same, two documents before the Inquiry Officer,

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namely, the prescription of the Doctor dated 28/10/2002 and the Register

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of Medico Legal Case of the student of even date were also relied upon by

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the Inquiry Officer which revealed that there is some support and they

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speak of some minor punishment. The disciplinary authority by order dated nil of December, 2005 has imposed the following punishment:

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“A reduction to a lower stage in time scale of pay by two stages for a period of two years and employee shall not earn increment of pay during the period of such reduction. On expiry of such period, the reduction will have the effect of postponing the future increments of his pay. The suspension period from 04/04/2003 to 12/10/2004 (AN) will be treated as non-duty period. The order takes effect from the date of issue of this penalty order.”

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The disciplinary authority by identical order dated nil of

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December, 2005 has imposed the following punishment as against the

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petitioner in W.P.(C).No.9661/2008:-

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W.P.(C).Nos.8292/2008 & 9661/2008

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“A reduction to a lower stage in time scale of pay by two stages for a period of two years and employee shall not earn increment of pay during the period of such reduction. On expiry of such period, the reduction will have the effect of postponing her future increments of pay. The period of suspension from 04/04/2003 to 26/10/2004 (AN) will be treated as non-duty period. The order takes effect from the date of issue of this penalty order.”

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Even though the learned counsel for the petitioners relied upon

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the various Judgments of the Apex Court in support of the plea that there is

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no legal evidence, as rightly pointed out by the learned Standing Counsel

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for the respondents, the father did not depose that the contents of the complaint are not correct. Apart from the same, the medical reports also supported the charges alleged against the delinquent. The following decisions were relied upon by the learned counsel for the petitioners:

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Kuldeep Singh v. Commissioner of Police and others

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[1999 SCC (L&S) 429], M.V.Bijlani v. Union of India and

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W.P.(C).Nos.8292/2008 & 9661/2008

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others [2006 SCC (L&S) 919], Central Bank of India Ltd. v.

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Prakash Chand Jain [AIR 1969 SC 983].

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In fact, in the last of the decisions it was held by the Apex

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Court that the domestic tribunals cannot ignore the substantive rules. It

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was further held in paragraph 8 that:

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“The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.”

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But, according to us, there is no violation of the said principle here and it

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can be seen that the Inquiry Officer has relied upon various aspects which

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according to him have established the charge. The Tribunal was of the view that the said approach made by the Inquiry Officer is correct. Learned

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Standing Counsel for the respondents submitted that the petitioner has not

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W.P.(C).Nos.8292/2008 & 9661/2008

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properly cross-examined the complainant also and merely because the

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complaint was withdrawn, it cannot be taken automatically that the

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allegations in the complaint are not correct. It is submitted that the father

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of the student has not disowned the allegation in the complaint.

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After considering various aspects, we are of the view that it

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cannot be said it is a case where there is no evidence in the matter.

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Therefore, we reject the said contention.

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As far as the petitioner in W.P.(C).No.9661/2008 is also

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concerned, position is the same. The alleged incident occurred on the next

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day and the allegation against her also is similar, namely, imposition of

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corporal punishment. It was found by the Inquiry Officer that there is

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substance in the allegations and, accordingly, she was found guilty and, identical punishment was imposed on her also.

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It is pointed out by the learned counsel for the petitioners that

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the imposition of punishment is totally disproportionate. It is submitted that

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W.P.(C).Nos.8292/2008 & 9661/2008

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the penalty imposed is a major penalty specified under Rule 11(v) of the

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Central Civil Services (Classification, Control and Appeal) Rules, which is

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extracted hereunder:

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“save as provided for in Clause (iii)(a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay”.

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It is submitted by the learned counsel for the petitioners that

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they will have to suffer punishment through out their career and the effect

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of the punishment will deprive them large chunk of salary and it will affect

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the pensionery benefits also.

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It is submitted by the learned Standing Counsel for the

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respondents by relying upon the decision of the Apex Court in Praveen

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Bhatia v. Union of India and others [(2009) 4 SCC 225], especially,

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W.P.(C).Nos.8292/2008 & 9661/2008

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paragraph 13 that the power of the court to interfere with the quantum of

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punishment is extremely restricted and only when the relevant factors have

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not been considered the court can direct reconsideration or in an appropriate case to certain litigation, indicate the punishment to be

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awarded; and that can only be in very rare cases.

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Having considered the arguments of the learned counsel for

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the petitioners and the learned Standing Counsel for the respondents, we

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are of the view that the punishment imposed is grossly disproportionate.

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The background of the case also will show that the complainants have not spoken against the petitioners during the inquiry. The Inquiry Officer was of the view that the punishment inflicted on the child may not be serious, going by the reports in both cases. Even though it was submitted by the

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learned Standing Counsel for the respondents that the matter will have to

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be sent back to the authority concerned if this Court does not approve the

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present punishment, according to us, to have a quietus of the matter on the

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W.P.(C).Nos.8292/2008 & 9661/2008

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entire dispute, the issue can be considered by this Court, especially, in the

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light of the principles stated by the Apex Court in Praveen Bhatia's case

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[(2009) 4 SCC 225]. Therefore, while agreeing with the Tribunal with regard to the scope of the inquiry and the findings in the Inquiry Report, we modify the punishment in the following terms:

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The punishment imposed is reduction to lower stage in time scale of pay by two stages for a period of two years with a further direction that the

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employee shall not earn increment of pay during the period of such reduction. It is further added that on expiry of such period, the reduction will have the effect of postponing the future increments of his/her pay. Following portions of the respective orders of punishments (Annexure-1 of Ext.P2) “on the expiry of such period the reduction will have the effect of

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postponing the future increments of his/her pay” will stand deleted. The appropriate authority will issue a consequential order incorporating the

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same and the monetary benefits which are due to the petitioners herein

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W.P.(C).Nos.8292/2008 & 9661/2008

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shall be disbursed accordingly as expeditiously as possible, at any rate,

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within a period of three months from the date of receipt of a copy of this