Central Administrative Tribunal - Mumbai
Ganesh Shamraoji Bharadbhunje vs M/O Labour on 20 December, 2018
p S 1 0/1 Na.634/2018
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MUMBAI,BENCH.,_,MUMBAL
ORIGINAL APPLICATION N0.634/2018
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Dated this Tllf\1*/**>fl*"'7 the lei» day of bar, 2018
COR/4M.'HON'BLE DRBHAGWAN SAHALMEMBER (A)
S HON"BLE SHRI R.N. SINGH, MEMBER (J) A
Mr. Ganesh Shamraoji Bharadbhunje, '
Aged about 40 years, Occ. Service, '
R/at C/0 Pushpa Vijay Bhokre, Plot No.
23/A, Raj ya Karrnchari Vasahat Society,
Ashok Nagar, Satpur, Nashik.
Office Address: Employees State Insurance
Corporation, Plot No.P-4, Trimbak Road,
M.I.D.C Area, Satpur, Nashik 422 007. .. Applicant
(By Advocate Shri Ashok P. Ragh ate )
Versas
1. Addl. Commissioner And Regional
Director, Disciplinary Authority,
Employee State Corporation, Regional
Office Maharashtra, Pancheep Bhava,
N.M. Joshi Marg, Lower Parel, A p
Mumbai 400 013.
2. Dy. Director (lnchar-ge), Establishment
Branch, Employee State Corporation,
SRO, Nashik. Plot No.P-4, Trimbak
Road, Satpur Industrial Area, V
Nashik -- 422 007. ' .. ' Respondents
Reserved on : I 6.1 0.201 8.
Pmrrounced on : £0 . [1 .'3,o lg
* ORDER
Per : Shri RN. Singh, _Member (J)
|' The Applicant pwho is working as "
Assistant under the Respondents has approached this Tribunal by_way of aforesaid Original Application, filed under Section 19 . ---------- """""" E it "it"? K 2 OA No. 634'/2018 of the Administrative Tribunals Act, 1985 to challenge the Memorandum dated 21.06.2018, forwarded on 02.07.2018 vide which the respondents have proposed to hold an inquiry against the applicant under Regulation 14 and para 3 of the 'third schedule of -the Employees State Insurance Corporation (Staff & Condition of Service) Regulations, 1959 (as amended). . "
2. The Article of Charge annexed with the aforesaid Charge Memo reads as under:
"S TENEBTIFART OFCHARGE z€1GAlNS.T SHRI GANESH S. ASSISTANT. SRONASIK ARZZCLE GE CHARQE-I .
Shri Ganesh S. Bharadbhunje, Asistant, SRO Nasilc has secured appointrnent to the post ofLower Division Clerk in ESIC, Maharashtra Region against a vacancy reservedfor a candidate/rnernber _ _ of ST Category by furnishing false and unlawful claim declaring hirnself to be tof 'Halba Caste', belonging to ST Category, and by producing a false and forged Caste Certificate in support of his false and unlawful claim. .
By above act, Shri Ganesh S. Bharadbhunje, Assistant SRO Nasilc has exhibited lack of integrity and conduct unbecorningof an employee of the Corporation and thereby violated Rule 3(lXi) &
(iii) of the CCS (Conduct) Rules, 1964 as rnade applicable to the employees of the ES! Corporation by virtue of Regulation 23 of the ESI Corporation (Stafl & Conditions of Service) Regulations, l959 as amended. " I" '
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3 A OA No.634/2015' y
3. Heard tine learned. counsel :fim: the Applicant. H
4. It is admitted case that in response to impugned Charge Memorandum, the applicant has preferred El reply dated 09.07.2018 (Annex. Arl5) ix; the Disciplinary Authority praying therein for dropping of the impugned Charge Memo dated 21.06.2018. However, It after considering the reply of the applicant, the Disciplinary Authority has decided to proceed with the disciplinary proceeding in pursuance to the impugned Charge IMemo' enui has appointed. Inquiry Officer and 'Presenting Officer vide order dated 02.08.2018 (Annex. A--16 & A--17).
5. _ The Applicant I instead - of participating in the disciplinary proceeding has approached this Tribunal for guashing of the aforesaid impugned Charge Memo dated 21.06.2018 mainly cni the following grounds;
(i) That_tjna respondents Ihave run; obtained
Caste validity certificate from other
candidates belonging txi ST category
including time candidates from time caste,_to
which the applicant belongs, l
-- - """""""" tr""""""""er arena" rt" '
4 OA No. 634/2018
UJJ The respondents have run; considered
the information given by the PRO_ Tahsil
Office, Nagpur' before issuing" the impugned
Charge IMemo. The .respondents ihadi submitted
the caste certificate: of. the applicant to
the issuing authority in.tflnr year 2012 iie.
after" ifimir years from ' tum; initial
appointment. '
(iii) ' That there is no provision under the
Central Government Service Rule "and -the
Regulation 'of the -Employees - State Insurance
Corporation. (Staff ii Condition cxf Service)
Regulations, 1959 knr which time services amt
'\|
the applicant are governed and regulated to
obtain the caste "validity" certificate from
In
the Caste Scrutiny Committee under the state Act.
6. Learned counsel for the applicant submits that -1J1 view of tune aforesaid grounds, the impugned Charge Memo deserves to be quashed by this Tribunal."
. ix 7. The departmental ' proceeding is governed. iby ea complete set <nf Rules, Regulations enui various instructions issued front time to "time cur the subject and. the
delinquent will have an ample opportunity to 9
-----------------~- risers 're V 5 0,4 No. 634/201s urge all his points against the allegation made against him in the Charge Memo issued by the employer. - He -may get ample opportunity to "lead his evidence in support of his defence and will also get opportunity to disprove the . evidence led by the department in the matter. '
8. ' It is settled law that ordinarily, no cause of action would accrue to an employee merely on initiation of the disciplinary _proceedings unless he/she is able to show that the impugned Charge Memo has been issued by an incompetent authority, the same is result of mala fide or on plain reading of the Statement of Imputation, the I. .
same does not disclose any misconduct. ' In this regard, we may rely upon the law laid down by the Hon'ble Apex Court in Dy. Inspector General of Police Vs. K.S. Swaminathan, I996 STPL l0905 SC decided on 04.10.1996. Para 4 of the judgment of the Hon'ble Apex Court reads as under:
"...4. It is settled law by catena of decisions of this Court that if the charge rnerno is totally vague and does not disclose any rnisconductfor which the charges have been framed, the Tribunal or the Court would not be justified at that stage to go into . whether the charges are true and could be gone into, for it would he a matter on production of the evidence for consideration at the enquiry by the enquiry oflicer. At the stage offrarning of the """""""""""""6 OA No. 634/2018
charge, the statement offacts and the charge sheet i supplied are required to be looked into by the Court or the Tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the i delinquent ofiicerl would disclose the alleged misconduct. The Tribunal, therefore, was totally unjustified in going into the charges at that stage. _lt is not the case that the charge memo and the statement offacts do not disclose any misconduct alleged against the delinquent officer. Therefore, the Tribunal was totally wrong in quashing the charge memo. In similar circumstances, in respect of other persons involved in the sametransactions, this Court in appeals arising out of SLP (C) Nos.l9453-63 of 1995 had on_February 9, J996 allowed the appeals, set aside the order passed by the Tribunal andremitted the matter holding that."
"This is not the stage at which the truth or otherwise of the charges ought to be looked into. This is the uniform view taken by this " Court in such matters. -". #' We may further refer and rely upon the law settled by the Hon'ble Apex Court in Union of India & Anr. Vs. Kunisetty Satvanarayana, AIR 2007 SC906 wherein it has been held as under:
1. Instead of replying to the aforesaid #____ Charge Memo, the respondent filed an OA before the Central Administrative Tribunal, Hyderabad which was disposed of vide order 15.3.2004 with the direction to.-the applicant to submit his reply to the Charge Memo dated - 23-.l2.2003 and on submission of the said reply the Disciplinary Authority should consider the same. Instead of filing any reply the respondent filed a Writ Petition in the High Court which has been allowed, and hence this appeal. ' ""
l2. In our opinion, the High Court was not justified in allowing the Writ Petition.
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-------------- r so 1 K. i""'" "'-- a 7 OA No. 634/2018
13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Rarndesh Kurnar Singh and others JT I995 (8) SC 33], ,Spccia1l,Direg;tor and alloililor vs, Mohggl. Ghislflrn Qhousc,and' another AIR 2004 SC I 46 7, Ulagappa and others vs. Divisional Commissioner, Mysore and others ZOONJO) SCC 639, State of U.P. vs. Brahrn Datt Sharma and another AIR 1987 SC 943 etc. ' J4. The reason why ordinarily a writ petition should not be entertained against a mere show-- cause notice or charge-sheet is that at. that stage the writ petition may be held to be premature. A rnere charge-sheet or show-cause notice does not give rise to any cause ofaction, because it does not amount to an adverse order which aflects the rights ofany party unless the same h_fl_as' been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show--cause notice or charge-sheet does not infiinge the right of any one. It is only when a final order imposing some punishment or otherwise adversely 'a]]"ecting a party is passed, that". the said party can be said to have any griejgance.
J5. Writjurisdiction is discretionary jurisdiction and hence "such "discretion lunder"/lrticle .226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. .
16. No doubt, in sornevery rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found -to be wholly withoutjurisdiction orfor some other reason Ff it is wholly.illegal. However, ordinarily the High Court should not interfere in such a matter". _ """""""~°*"'§'"_"'afi n¥ ':fl--'-'-'i7 '?$?3"'"""""' ~~-- ~ "&z'=:*: ¢-'-'- -- - - - - ---- ' '" 1"!'-5-1
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10. It is run; the case inf the applicant that the impugned Charge Memorandum has been issued iby ant incompetent authority cm: the same is the result of male fide, or the Statesman; of' lmputation, prima facie, _does not disclose any delinquency.
1]} In View of the aforesaid discussion and lint referred txn above, vma do rmfl; find '£\_»_F'_-..';I;
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any" reason ix: interfere vniii the impugned Charge Memorandum. Accordingly, the OA deserves ix) be dismissed.- We order accordingly. However, we make it clear that this order should not be treated as anything on the merit of the charges against the applicant in the impugned Memorandum.
12. The OA is dismissed. No order as to costs.
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(R.M'stZWgt@) (Dr. B/uguti seltfili-it
Member (J) .Member (A)
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