Central Administrative Tribunal - Mumbai
Ramesh Sharma vs Employees State Insurance Corporation on 29 January, 2025
1 OA No.254/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.254/2019
Dated this Wednesday the 29th January, 2025
CORAM: Hon'ble Mr. Shri Krishna, Member (A)
Hon'ble Mr. Umesh Gajankush, Member (J)
Ramesh Sharma
Aged: 54, Occu : Deputy Director
[Retired] Employees State Insurance
Corporation (ESIC)Hospital, Kolhapur
R/at B-106, Sheraton Luxury, Behind
Shyam Mandir, VIP Road, Althan,
Surat - 395 007. ... Applicant
(By Advocate Shri R.G. Panchal)
VERSUS
1. The Director General,
Employees State Insurance
Corporation, Panchdeep Bhavan,
CIG Road, New Delhi - 110 002.
2. The Medical Superintendent,
ESIC Hospital Kolhapur,
Behind Circuit House, Tarabai Park,
Kolhapur - 416 003. ... Respondents
( By Advocate Ms. Naveena Kumai )
2 OA No.254/2019
ORDER
Per: Mr. Shri Krishna, Member (A)
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking declaration that the applicant's notice of VRS dated 17.05.2018 is deemed to have been accepted by the respondent No.1 on expiry of the statutory period of 3 months as contemplated by Fundamental Rule 56K and that he stood retired w.e.f. 18.08.2018.
2. Brief facts as noted from the Original Application of the applicant are that he was working as Deputy Director in the Employees' State Insurance Corporation (ESIC). He was issued a show cause notice dated 26.02.2015 to show cause and explain the allegations made in the anonymous complaints against the applicant (Annexure A-2) in which it is alleged that Shri Sharma chooses contractor and create dummy contractor for tendering purposes and taking 3 OA No.254/2019 bribe from the contractor in order to extend the benefit to them. It is also alleged that Shri Sharma deals with the files himself to avoid adverse notings from Dealing Assistants and goes to the extend of misplacing files where there are adverse remarks. Further while dealing in rental premises cases for Branch Offices, he inflates the rates of rent for the benefit of landlords and receives commission etc in return. The matter was forwarded to vigilance for inspection in which vigilance found that the proper procedure for awarding contract to M/s. Ganga Stationery & Xerox was not followed as letters to the parties were sent by hand delivery and the tender from the parties were again received by hand delivery mode, in violation of Rule 142 of GFR. Therefore, the contract was awarded to M/s. Ganga Stationery & Xerox favourably through the compromised tendering process with ulterior motives and an excess amount of Rs.5,02,089/- was paid on 4 OA No.254/2019 manipulated bills.
2.1 The applicant vide his letter dated 18.03.2015 to the above show cause notice has accepted that the tendering process was finalized during his tenure. Thereafter, a charge memorandum dated 07.02.2018 was issued to him in which two articles of charge were framed. In the Article-I, it is alleged that tender process were not followed. In Article-II, it has been alleged that financial loss of revenue to the Corporation to the extent of Rs.3,78,620/- has been caused with the help of inflated indents by practicing the unethical means such as manipulating the Xerox Register and destroying the indents after payment of their bills by the vendor M/s Ganga Stationery & Xerox.
2.2 The applicant vide his letter dated 28.02.2018 (Annexure A-4) admitted both the charges and requested for taking a lenient view for the lapses and irregularities. By a 5 OA No.254/2019 subsequent letter dated 09.04.2018, he stated that he admits both the charges unconditionally and solicited and begged that a lenient view may be taken for the lapses and irregularities committed unknowingly.
2.3 The competent authority (Respondent No.1) imposed major penalty of withholding of five increments with future effect vide his order dated 04.05.2018 (Annexure A-6). The applicant accepted the penalty imposed upon him and did not file any appeal. Thereafter, the applicant vide letter dated 17.05.2018 applied for voluntary retirement from the services of the Corporation under 'Fundamental Rule' (FR)-56(k).
3. It is the case of the applicant that on the expiry of 90 days notice period, he stood deemed to have been retired w.e.f.18.08.2018. It has been submitted that the applicant's request for VRS under FR-56(k) was under examination on 13.08.2018 and there was no communication from 6 OA No.254/2019 the ESIC Headquarters and, therefore, after expiry of notice period on 17.08.2018, the applicant was deemed to have retired from the services of the Corporation w.e.f. 18.08.2018.
4. The applicant sent an Email dated 21.08.2018 to the ESIC Headquarters, New Delhi informing that the competent authority has failed to convey its decision about non acceptance of VRS request before expiry of the notice period and, therefore, the applicant must be deemed to have retired w.e.f. 18.08.2018 (Annexure A-9) followed by another Email dated 11.09.2018 (Annexure A-10).
5. The ESIC Headquarters, New Delhi vide letter dated 12.09.2018 informed the applicant that his request for VRS was not accepted by the competent authority and the same was still under examination which clearly shows that no decision was taken by the Corporation till 12.09.2018. The ESIC Headquarters Office vide email dated 7 OA No.254/2019 19.09.2018 and 10.10.2018 informed that request for VRS was not accepted by the competent authority and it was still under examination (Annexure A-13).
6. The ESIC Headquarters Office, New Delhi vide order dated 04.10.2018 informed the applicant that request for VRS under FR 56(k) was not acceded to by the Additional Commissioner(P&A). The applicant sent a letter dated 17.10.2018 through the email to the respondent No.1 informing that the Additional Commissioner (P&A) was not a competent authority to take a decision in the service matters of the Group 'A' officers of the Corporation as only the appointing authority, who is respondent No.1, is competent to make decision. He sent another email dated 10.12.2018 informing that if pensionary/terminal benefits are not released by 25.12.2018, then the applicant will have to approach the CAT, Mumbai for redressal of his 8 OA No.254/2019 grievances. Thereafter, he filed this OA.
7. The applicant places reliance on the following judgments:
(i) Dinesh Chandra Sangma Vs. State of Assam, (1977) 4 SCC 441.
(ii) C.V. Francis Vs. Union of India & Ors., (2013) 14 SCC 486.
(iii) Tek Chanel Vs. Dile Ram, (2001) 3 SCC 290.
8. After issuance of notice, the respondents have filed their affidavit in reply and contested the OA.
8.1 It has been submitted that the letter dated 17.05.2018 submitted by the applicant was duly forwarded by the Medical Superintendent, ESIC Hospital, Kolhapur vide letter dated 17.05.2018. He has stated in the letter that monetary amount equivalent to the penalty of withholding of five increments with future effect as per the headquarters office order dated 04.05.2018 may kindly be calculated and recovered from gratuity amount payable to him. 9 OA No.254/2019 8.2 It has been submitted that the applicant while tendering his notice vide letter dated 17.05.2018 never sought voluntary retirement under Rule 56(k) of the FR or any other rule. His request seeking voluntary retirement was under
consideration and examination with regard to his request for calculation and recovery of amount towards the penalty of withholding of five increments with future effect, the matter was yet to be decided. He was informed that his request for VRS was under consideration and was not accepted so far vide email dated 13.08.2018. While communicating with the ESIC, the applicant not even used the login ID provided by the ESIC ([email protected]) but used his designation as 'Deputy Director, ESIC Hospital, Kolhapur' also in email dated 11.09.2018,
18.09.2018 and 17.10.2018. He was informed vide letter dated 12.09.2018 (Annexure A-11)with the advice to report for duty. His request for 10 OA No.254/2019 calculation and recovery of amount towards the penalty of withholding of five increments with future effect was examined after taking views of the vigilance branch and same was not accepted due to non provisions of the same under any rule. 8.3 It has been further submitted that the applicant did not submit his request for VRS from the services of the Corporation mentioning any of the Fundamental Rule or any other Rule. His date of birth is 22.10.1964 and he had completed 27 years 3 months and 8 days service as on 17.08.2018, after his joining on 10.05.1991 in the Corporation.
8.4 The applicant has submitted conditional voluntary retirement after the calculations and recovery of monetary amount equivalent to the penalty of withholding of five increments with future effect as per the Headquarters Office order dated 04.05.2018. He was aware of the facts that there is no provisions under any rule to 11 OA No.254/2019 recover any this type of amount, as such he did not quote any of the Rule/provision, under which voluntary retirement can be sought and also did not serve clear 3 months of notice for the purpose.
8.5 It has been submitted that the contention of the applicant that his notice for VRS was not rejected within a period of 90 days is not correct as his notice was still under examination and the same was communicated to him vide email dated 13.08.2018 and again on 12.09.2018.
8.6 It has been submitted that the request dated 17.05.2018 submitted by the applicant for VRS was conditional seeking voluntary retirement after calculation and recovery of monetary amount equivalent to the penalty of withholding of five increments with future effect as per the office order dated 04.05.2018. He was informed vide email dated 13.08.2018 and letter dated 12 OA No.254/2019 12.09.2018 that his request for VRS was not accepted by the competent authority and was still under consideration.
8.7 Regarding the judgment of the Hon'ble Apex Court in the case of Dinesh Chandra Sangma (supra), it has been submitted that according to the Rule 48-A of the CCS(Pension) Rules, notice of voluntary retirement given under sub rule(1) shall require acceptance by the appointing authority. Since his VRS was not accepted and the same was communicated to him vide email dated 13.08.2018 and 12.09.2018, the decision is not applicable to the facts of the case. Further, no comments have been offered regarding the applicability of judgement in the case of C.V. Francis (supra) and in the case of Tek Chanel (supra).
9. The applicant has filed rejoinder to the reply submitted by the respondents reiterating the averments made in the OA. It has been 13 OA No.254/2019 submitted that he has given notice of VRS w.e.f. 17.08.2018 (AN)alongwith a format of voluntary retirement duly filled in by him and recommended by the Medical Superintendent, ESIC Hospital Kolhapur and qualifying service verification done by the Deputy Director (Finance), ESIC Hospital Kolhapur. It was clearly recorded/mentioned against the para 6 of the aforesaid format of voluntary retirement that he was seeking Voluntary Retirement under FR 56(k) of Fundamental (First Amendment) Rules, 2014 (Annexure A-16). The application of voluntary retirement along with the proforma of voluntary retirement was duly forwarded by the controlling authority and, therefore, it is not correct for the respondents to say that he did not mention the relevant rules under which he was seeking VRS. The Headquarters Office of the ESIC vide letter dated 12.09.2018 (Annexure A-11) clearly confirmed that 'Notice for voluntary retirement 14 OA No.254/2019 was submitted under FR 56(k). Regarding the contention of the respondents that he has submitted conditional voluntary retirement after calculation and recovery of monetary amount equivalent to the penalty of withholding of five increments with future effect, it has been submitted that it was simply a request on the part of the applicant in his forwarding letter dated 17.052018 whereby a notice for voluntary retirement was submitted, that monetary amount equivalent to the penalty may be recovered.
10. It has been submitted that the notice for Voluntary Retirement under FR 56(k) envisaged that the competent authority i.e. respondent No.1 is only competent to accept or reject the voluntary retirement requests of the Group 'A' officers of the Corporation and can withhold the voluntary retirement request only in the following circumstances:-
15 OA No.254/2019
(i) if the government servant is under suspension;
(ii) If a charge sheet has been issued and the disciplinary proceedings are pending;
(iii) If judicial proceedings on charges which may amount to grave misconduct are pending.
11 It has been submitted that since the applicant was neither under suspension, nor a chargesheet was issued and the disciplinary proceedings were pending on the date of the notice and that judicial proceedings on the charges of grave misconduct were also not pending, therefore, no ground was available to the respondents to reject his request for VRS.
12. The respondents have not filed any sur- rejoinder to the rejoinder filed by the applicant.
13. During arguments learned counsel for both the sides have based their arguments on the basis of the pleadings.
16 OA No.254/2019
14. Learned counsel for the applicant argued that the conditions under which request of VRS under Fundamental Rule 56(k) can be refused is when the applicant is under suspension or the disciplinary proceedings are pending or judicial proceedings on the charges of grave misconduct are pending. Since in the case of the applicant, none of the three conditions were applicable, the respondents could have not rejected the request of the applicant and, therefore, the applicant is deemed to have retired on 17.08.2018.
15. We have heard the learned counsel for both the parties and perused the pleadings and documents filed on record.
16. It is not in dispute that when the applicant submitted notice for VRS on 17.05.2018, the disciplinary proceedings were pending against him inasmuch as he was awarded major penalty of withholding of five(05) increments with future 17 OA No.254/2019 effect vide order dated 04.05.2018. Thus, the term of penalty will come to an end only on 03.05.2023. It is also not in dispute that the applicant has accepted the major penalty as he has not filed any appeal against the imposition of major penalty. Therefore, unless he serves the complete term of penalty of 5 years, it cannot be said that disciplinary proceedings are over. The applicant himself admits that the VRS under Section 56(k) can be refused on the ground that if a chargesheet has been issued and disciplinary proceedings are pending. Issuance of charge sheet is only the initial stage of disciplinary proceedings. The chargesheet may result either in acquittal of the employee or culminating imposition of penalty. However, on imposition of penalty, the disciplinary proceedings do not come to an end automatically unless the penalty awarded is served by the employee. Therefore, the contention of the applicant that since no charge 18 OA No.254/2019 sheet was pending against him or any disciplinary proceedings were pending against him is devoid of any merit.
17. The applicant has placed reliance on the decision of Hon'ble Supreme Court in the case of Dinesh Chandra Sangma (supra). It is seen that in that case the Appellant was a District and Sessions Judge and his notice under FR-56(c)was accepted by the State Government and permission was accorded to retire from service which was subsequently revoked. There were no departmental proceedings and no penalty was imposed and facts and circumstances of that case are totally different and, therefore, distinguishable. Reliance placed by the applicant on the judgements in the case of C.V. Francis (supra) and Tek Chanel (supra) are of no help to the applicant as in those cases. There was no penalty term pending against the applicants. 19 OA No.254/2019
18. We find that Rule 56(k) of the Fundamental Rules reads as under:
"56(k)(1) Any Government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years, if he is in Group 'A' or Group 'B' service or post, (and had entered Government service before attaining the age of thirty-five years), and in all other cases after he has attained the age of fifty-five years:
Provided that-
(a) Not printed (Since Clause € has been Deleted)
(b) nothing in the clause shall also apply to a Government servant, including scientist or technical expert who(i) is on assignment under the Indian Technical and Economic co-operation (ITEC) Programme of the Ministry of External Affairs and other aid programmes, (ii) is posted abroad in a foreign-based office of a Ministry/Department and (iii) goes on a specific contract assignment to a foreign Government unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year; and
(c) it shall be open to the Appropriate Authority to withhold permission to a Government servant, who seeks to retire under this clause, if -
(i) the Government servant is under suspension: or
(ii) a charge-sheet has been issued and the disciplinary proceedings are pending; or
(iii) if judicial proceedings on charges which may amount to grave misconduct, are pending.20 OA No.254/2019
EXPLANATION.-For the purpose of this clause, judicial proceedings shall be deemed to be pending, if a complaint or report of a police officer, of which the Magistrate takes cognizance, has been made or filed in a criminal proceedings;"
18.1 The plain reading of clause (c) to the proviso to Rule 56(k)(1) makes it clear that it shall be open to the Appropriate Authority to withhold permission to a Government servant, who seeks to retire under this clause, if a chargesheet has been issued and the disciplinary proceedings are pending.
19. At this stage, it is relevant here to take note of the stand taken by the official respondents and the contention of the learned counsel for the respondents that in pending disciplinary proceedings, major penalty order was passed against the applicant on 04.05.2018 by withholding five(5) increments with future effect and during the currency of the aforesaid penalty order, the rejection of the voluntary retirement of the applicant is legal and proper. It is also 21 OA No.254/2019 submitted that although in Rule 56(k) of the Fundamental Rules, there is a mention of "disciplinary proceedings are pending", however, looking to the provisions, it is clear that suspension, issuance of charge sheet, pendency of disciplinary proceedings and judicial proceedings on the charges which may amount to grave misconduct are sufficient to withhold or reject the prayer for voluntary retirement.
20. Since in the present case, after departmental enquiry, the major penalty order has been passed and, therefore, the term "disciplinary proceedings pending" shall be taken to be liberal and pragmatic view. When the legislature in Rule 56(k)(1)(c)(i)(ii) &
(iii)spelt out the contingency in respect of the pending disciplinary proceedings itself then in furtherance of the same, if the penalty/punishment order has been passed then the competent authority is empowered to withhold or 22 OA No.254/2019 reject the prayer for voluntary retirement.
However, in support of the aforesaid contention, no statutory rules, office memorandums or any circulars are placed on record on behalf of the official respondents.
21. Under these circumstances, looking to the plain reading of the Fundamental Rule 56(k), rejection of the prayer of the application vide communication dated 04.10.2018 (Annexure A-14) is unsustainable. Although in Original Application, the applicant has not challenged the said communication.
22. Further, the contention raised by the respondents that when the pendency of the proceedings disciplinary/judicial and suspension empowers the competent authority to withhold or reject the prayer for voluntary retirement, then punishment/penalty are more serious in nature. However, the legislature itself has not made penalty or punishment is one of the grounds for 23 OA No.254/2019 withholding or rejection of voluntary retirement. Be that as it may. It is for the policy makers and the legislature to take a call on this aspect.
23. Thus, in view of the aforesaid discussion, the stand of the official respondents in respect of penalty and currency period and communication dated 04.10.2018 is unsustainable. The Competent Authority of the respondents department is directed to reconsider the matter in view of the observations made above within a period of 90 days from the date of receipt of certified copy of this order and pass a reasoned and speaking order.
24. With the aforesaid, the Original Application is disposed of. Pending MAs, if any, stand closed. No order as to costs.
(Umesh Gajankush) (Shri Krishna)
Member (J) Member (A)
ma.
Digitally signed by Milan Jackson Alphanso
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