F.
Defense Asstt./ KEVINTSA/ 2016-17/ Date: 20.09.2016
To
Shri Santosh Kumar Mall, IAS e-mail
Only
Commissioner
Kendriya
Vidyalaya Sangathan
Head
Quarter, New Delhi.
Sub.: Permission
to engage Defense Assistance from other Central Government department – Seeking
permission to allow all non-KVS Central Government Employee to work as Defense
Assistance.
Sir,
In KVS while handling the Disciplinary
Procedure against any Charged Officer, KVS did not allow Charged Officer to
appoint a Defense Assistant from any other Central Government department. Your
kind self has assured of the decision on the issue when we met on 16.09.2015
with the issue after Pre-JCM. But it is sorry to inform that kind decision
on the issue from your kind self is still awaited. The decision
from JCM held on 27.05.2016 through ATR has not yet reached. In this regard
some additional relevant facts need to be added that----
1.
As your
honour would accept that Defense Assistance is an important aspect for
entire disciplinary proceeding in any Government Organisation. In KVS vide
letter NoF.9-5/86/KVS (Vig.) dated 19.12.1995 a letter matter was clarified about
the term “government servant” while deciding defense assistance in KVS
means “an employee of the Kendriya Vidyalaya Sangathan”. But there are
several cases where KVS employee refrain themselves to work as Defense
Assistance in the fear of victimization. But on the other hand in the want
of defense assistant, compulsorily from KVS, has kept numerous disciplinary
proceedings pending since long. The decision of Cabinet Sectt.
(Department of Personnel) OM No. 39/33/72-Estt. (A) dated the 16th
December, 1972 is also being violated, though inadvertently, in KVS as KVS is
not allowing a Central Government employee to plead the act of Defense
Assistant resulting huge number of cases lying pending in the want of a DA.
2.
As your kind self would certainly agree that
Defense Assistance is meant for allowing the right granted by constitution of
India under Article 311 and allow to present case without any fear or
restriction. This would certainly not be possible if a defense assistance works
of a Charged Officer happens to a KVS employee. In this regard the case of Abdul Khadar Darga vs
The Joint Commissioner (Admn.) ... on 21 November, 2003 ( Copy attached) may be referred
where the defense assistant has been threatened by Principal, KVS, Sambra,
called D.R. Kamble, Defence Assistant to his chamber and threatened him of dire
consequences if he continued to act as Defense Assistant the applicant in the
disciplinary proceedings, which fact was brought to the notice of the Enquiry
Officer as well as the Presiding Officer vide communication dated 9.6.2000. KEVINTSA
already raised alarm about the victimization of Defense Assistance, if
compulsorily, selected from KVS employee as case referred above.
3.
In the event of discussion this is to draw
your kind attention towards Rule 14 (8) of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 provides that the Government
servant against whom disciplinary proceedings have been initiated may take the
assistance of any other Government servant to present the case on his/her
behalf. While no permission
is needed by the official who is chargesheeted to secure the assistance of any
other Government servant, it is necessary for the latter to obtain the
permission of his controlling authority to absent him/ herself from office in
order to assist the accused Government servant during the enquiry. It would avoid delay in granting such
permission, if the Inquiry Officers take the initiative in the matter of
informing the controlling authority in this regard. It is, therefore, suggested that as soon as
an accused Government servant informs the Inquiry Officer of the name and other
particulars of the Government servant who has been chosen by him to assist in
the presentation of his case, the Inquiry Officer should intimate this fact to
the controlling authority of the Government servant concerned.
The doctrine of natural
justice, as held by the Hon'ble Supreme Court in Kumaon Mandal Vikas Nigam
Ltd. v. Girja Shankar Pant and Ors., (2001) 1 SCC 182, is
not only to secure justice but to prevent miscarriage of justice. In
Baldwin's case the doctrine was held to be incapable of exact definition but
what a reasonable man would regard as a fair procedure in particular
circumstances. A question arises as to who is a reasonable man. In India, a
reasonable man cannot but be a common man similarly placed. Strait jacket
formula cannot be made applicable but compliance with the doctrine is solely
dependent upon the facts and circumstances of each case. It is a fundamental
requirement of law that the natural justice be complied with and the same has,
as a matter of fact, turned out to be an integral part of administrative
jurisprudence. The judicial process itself embraces a fair and reasonable
opportunity to defend though the same is dependent upon the facts and
circumstances of each individual case.
When KVS has totally adopted CCS (CCA) Rules 1965
for their employee they should be treated at par with other Central Government
employee in terms of allowing them to nominate working/retired personnel from
other central Government / Autonomous Department under Central Government. Then
only right to equal opportunity allowed to the Charged Officer could sustain in
KVS.
Additionally, if a KVS employee is compulsorily
have to work as Defense Assistant of the Charged officer, KVS in that case, is
losing the bonafide duties of the Defense Assistant of his chair back at his
headquarter. On allowing the Defense Assistance from Other Central Government
Department will help KVS to be fair in discharging the act of neutrality.
Yours
faithfully
[S.K.BISWAS]
General Secretary
F.
Defense Asstt./ KEVINTSA/ 2015-16/ Date: 15.10.2015
To
Shri G.K.Srivastava, IAS e-mail/SP
Additional
Commissioner (Admn.&Vig.)
Kendriya
Vidyalaya Sangathan
Head
Quarter, New Delhi.
Sub.: Permission
to engage Defense Assistance from other Central Government department.
Sir,
In KVS while handling the Disciplinary
Procedure against any Charged Officer, KVS did not allow Charged Officer to
appoint a Defense Assistant from any other Central Government department. Your
kind self has assured of the decision on the issue when we met on 16.09.2015
with the issue after Pre-JCM. But it is sorry to inform that kind decision
on the issue from your kind self is still awaited. In this regard some additional relevant facts
need to be added that----
1.
As your
honour would accept that Defense Assistance is an important aspect for
entire disciplinary proceeding in any Government Organisation. In KVS vide
letter NoF.9-5/86/KVS (Vig.) dated 19.12.1995 a letter matter was clarified
about the term “government servant” while deciding defense assistance in
KVS means “an employee of the Kendriya Vidyalaya Sangathan”. But there are
several cases where KVS employee refrain themselves to work as Defense
Assistance in the fear of victimization. But on the other hand in the want
of defense assistant, compulsorily from KVS, has kept numerous disciplinary
proceedings pending since long. The decision of Cabinet Sectt.
(Department of Personnel) OM No. 39/33/72-Estt. (A) dated the 16th
December, 1972 is also being violated, though inadvertently, in KVS as KVS is not
allowing a Central Government employee to plead the act of Defense Assistant
resulting huge number of cases lying pending in the want of a DA.
2.
As your kind self would certainly agree that
Defense Assistance is meant for allowing the right granted by constitution of
India under Article 311 and allow to present case without any fear or
restriction. This would certainly not be possible if a defense assistance works
of a Charged Officer happens to a KVS employee. In this regard the case of Abdul Khadar Darga
vs The Joint Commissioner (Admn.) ... on 21 November, 2003 ( Copy attached) may be referred
where the defense assistant has been threatened by Principal, KVS, Sambra,
called D.R. Kamble, Defence Assistant to his chamber and threatened him of dire
consequences if he continued to act as Defense Assistant the applicant in the
disciplinary proceedings, which fact was brought to the notice of the Enquiry
Officer as well as the Presiding Officer vide communication dated 9.6.2000. KEVINTSA
already raised alarm about the victimization of Defense Assistance, if
compulsorily, selected from KVS employee as case referred above.
3.
In the event of discussion this is to draw
your kind attention towards Rule 14 (8) of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 provides that the Government
servant against whom disciplinary proceedings have been initiated may take the
assistance of any other Government servant to present the case on his/her
behalf. While no permission
is needed by the official who is chargesheeted to secure the assistance of any
other Government servant, it is necessary for the latter to obtain the
permission of his controlling authority to absent him/ herself from office in
order to assist the accused Government servant during the enquiry. It would avoid delay in granting such
permission, if the Inquiry Officers take the initiative in the matter of
informing the controlling authority in this regard. It is, therefore, suggested that as soon as
an accused Government servant informs the Inquiry Officer of the name and other
particulars of the Government servant who has been chosen by him to assist in
the presentation of his case, the Inquiry Officer should intimate this fact to
the controlling authority of the Government servant concerned.
The doctrine of natural
justice, as held by the Hon'ble Supreme Court in Kumaon Mandal Vikas Nigam
Ltd. v. Girja Shankar Pant and Ors., (2001) 1 SCC 182, is
not only to secure justice but to prevent miscarriage of justice. In
Baldwin's case the doctrine was held to be incapable of exact definition but
what a reasonable man would regard as a fair procedure in particular
circumstances. A question arises as to who is a reasonable man. In India, a
reasonable man cannot but be a common man similarly placed. Strait jacket
formula cannot be made applicable but compliance with the doctrine is solely
dependent upon the facts and circumstances of each case. It is a fundamental
requirement of law that the natural justice be complied with and the same has,
as a matter of fact, turned out to be an integral part of administrative
jurisprudence. The judicial process itself embraces a fair and reasonable
opportunity to defend though the same is dependent upon the facts and circumstances
of each individual case.
When KVS has totally adopted CCS (CCA) Rules 1965
for their employee they should be treated at par with other Central Government
employee in terms of allowing them to nominate working/retired personnel from
other central Government / Autonomous Department under Central Government. Then
only right to equal opportunity allowed to the Charged Officer could sustain in
KVS.
Additionally, if a KVS employee is compulsorily
have to work as Defense Assistant of the Charged officer, KVS in that case, is
losing the bonafide duties of the Defense Assistant of his chair back at his
headquarter. On allowing the Defense Assistance from Other Central Government
Department will help KVS to be fair in discharging the act of neutrality.
Yours
faithfully
[S.K.BISWAS]
General Secretary
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