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2015 Supreme(Megh) 9
MEGHALAYA HIGH COURT
T. Nandakumar Singh, J.
Durgesh Kumar Agrawal - Appellant
Versus
Union of India and Ors. - Respondent
W.P. (C) No. 168/2014
Decided On : 04-02-2015
For the Petitioner: N. Kaushik, Adv.
For the Respondents: A.K. Bhattacharya, Sr. Adv. and N. Mozika, Adv.
In a disciplinary proceeding, the burden of proof lies with the prosecution to establish the charges against the accused. The disciplinary authority cannot shift the burden of proof to the accused by requiring them to prove negative circumstances.
Headnote:
The petitioner, a university professor, challenged the disciplinary authority's order of dismissal from service and the appellate authority's order modifying the quantum of punishment to 'removal from service'. The core issue was whether the petitioner had submitted a forged pay fixation statement along with his application for pay fixation, leading to the disciplinary proceedings.
Fact of the Case:
The petitioner, a university professor, applied for pay fixation based on the implementation of the 6th Pay Commission recommendations. He submitted an application with a copy of his pay fixation statement from his previous employer, FORE School of Management, Delhi. However, the petitioner did not have a photocopy of the pay fixation statement and could not retain the original as he did not anticipate any requirement for it at that time. The respondent-institute received a reply from the Deputy Accountant General (Establishment & Administration) confirming the petitioner's entitlement to a revised pay. Based on this, the respondent-institute implemented the revised pay for the petitioner without waiting for a response from the Ministry of Human Resource Development (MHRD) as decided in a Board of Governors (BOG) meeting. Subsequently, the respondent-institute received a letter from FORE School of Management stating that the pay fixation statement annexed by the petitioner was forged. The respondent-institute placed the petitioner under suspension and initiated disciplinary proceedings against him, alleging that he had submitted a forged pay fixation statement to claim enhanced salary.
Finding of the Court:
The Court found that the prosecution failed to conclusively prove that the petitioner had submitted the forged pay fixation statement along with his application. The Court noted that none of the witnesses saw the petitioner submitting the forged document, and the Director, RGIIM, who received the application, did not put his initials on the forged pay fixation statement. Additionally, the Court held that the disciplinary authority had violated the procedure prescribed under Rule 15(2) of the CCS (CCA) Rules, 1965, by not furnishing its own tentative reasons for disagreement with the inquiry officer's report that the prosecution could not prove the petitioner's submission of the forged document.
Issues: 1. Whether the petitioner had submitted a forged pay fixation statement along with his application for pay fixation. 2. Whether the disciplinary authority had followed the proper procedure in conducting the disciplinary proceedings.
Ratio Decidendi: 1. The Court held that the prosecution failed to conclusively prove that the petitioner had submitted the forged pay fixation statement along with his application. The Court noted that none of the witnesses saw the petitioner submitting the forged document, and the Director, RGIIM, who received the application, did not put his initials on the forged pay fixation statement. 2. The Court held that the disciplinary authority had violated the procedure prescribed under Rule 15(2) of the CCS (CCA) Rules, 1965, by not furnishing its own tentative reasons for disagreement with the inquiry officer's report that the prosecution could not prove the petitioner's submission of the forged document.
Final Decision: The Court quashed the impugned orders of dismissal and removal from service and directed the reinstatement of the petitioner within one month. The Court left the issue of arrear pay and allowances to the discretion of the disciplinary authority, subject to the petitioner's undertaking to refund any excess payment from his future pay.
Judgment
T. Nandakumar Singh, J.1. By this writ petition, the petitioner is assailing the order of the disciplinary authority dated 21.08.2013 imposing major penalty of dismissal from service and also the order of the appellate authority dated 21.04.2014 for modifying the quantum of punishment by reducing from "dismissal from service" to "removal from service".
2. Heard Mr. N Kaushik, learned counsel for the petitioner and Mr. AK Bhattacharya, learned senior counsel assisted by Mr. N Mozika, learned counsel for the respondents 2 & 3.
3. The fact sufficient for deciding the core questions call for decision in the present writ petition is briefly noted. The petitioner has been a university topper of MBA specialized in Marketing and Ph.D. in the area of cross discipline of Marketing, Supply Chain Management, Strategy and Information Technology from ABV-Indian Institute of Information Technology and Management, Gwalior. After working in the Indian Automobile Industry for 5 (five) years during 1986-91, he has been teaching for last 22 years at PG level Management education. In response to an advertisement of the respondent-institute, the petitioner applied against the post of Professor with the respondent-institute. The petitioner was selected by the respondent-institute for the post of Associate Professor and as such, he resigned from his previous employer i.e. FORE School of Management, Delhi. After joining with the respondent-institute, the recommendations were submitted by the 6th Pay Commission to the Central Govt. which were accepted by the Central Govt. in the year 2009 with the condition that the said recommendation shall be applicable w.e.f. 01.01.2006. After the recommendation of the 6th Pay Commission was implemented at the respondent-institute, the petitioner applied for rectification in his pay fixation made earlier in view of the revision of pay scale as per 6th Pay Commission recommendation by filing an application dated 31.01.2011 to the Director, RGIIM, Shillong (respondent-institute). The said application dated 31.01.2011 was annexed with the original copy of pay fixation letter of FORE School of Management, Delhi (previous employer of the petitioner). It is the clear case of the petitioner that he had enclosed pay fixation letter issued by the previous employer i.e. FORE School of Management, Delhi along with the said application in original and also that no photo copy of the said pay fixation letter was taken and retained by the petitioner before its submission, as he did not contemplate any such requirement at that point of time. The petitioner in the said application clearly stated that the revised pay as per the 6th Pay Commission was fixed by the previous employer for him as on July, 2007 and the petitioner had submitted the said application dated 31.01.2011 directly to the Director, RGIIM, Shillong (respondent-institute) and the said application was marked by the Director to be put up to the pay fixation committee on the same day i.e. 31.01.2011 and was forwarded to the Chief Administrative Officer (CAO) of the respondent-institute. As no action whatsoever had been taken on the said application of the petitioner dated 31.01.2011, the petitioner sent a reminder to his application for necessary rectification in the pay fixation in the line with other settled cases by filing a reminder application dated 27.07.2011. In that reminder, the petitioner enclosed a copy of the said earlier application dated 31.01.2011 without enclosure i.e. pay fixation letter issued by his previous employer dated 12.01.2011. On receipt of the reminder from the petitioner, the pay fixation committee was reconstituted replacing Prof. D.K. Agrawal by Prof. Keya Sengupta on 28.07.2011 to look into the case of the fixation of pay of the petitioner. After one and half month, once again the pay fixation committee was reconstituted replacing Prof. Keya Sengupta by Shri. R.C. Saxena, CAO, RGIIM, Shillong to look into the case of pay fixation of
