Central Administrative Tribunal - Delhi
Shri Prem Singh Bisht vs Union Of India on 22 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1651/2013 Reserved On:06.07.2015 Pronounced On:22.07.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Prem Singh Bisht S/o Late Shri Gyan Singh R/o H.No.4, IInd Floor, Block No.9, Spring Filed Colony, Sector-31, Fardabad. .Applicant By Advocate: Shri Ajesh Luthra. Versus 1. Union of India Through Secretary, Ministry of Labour, Shram Shakti Bhawan, New Delhi. 2. The Commissioner, Employees Fund Organisation, National Data Centre, P.F. Commissioner, Hudco Vishala Pl., Bhikaji Cama Place, New Delhi. 3. The Additional Central Provident Fund Commissioner, EPFO, Regional Office Delhi (North), 8th Floor, 28, Community Centre, Wazirpur Industrial Area, New Delhi-11052. 3. The Regional Provident Fund Commissioner-I, EPFO, Regional Office (North), Bhavishya Nidhi Bhawan, 28, Community Centre, Wazirpur Industrial Area, New Delhi-11052. Respondents (By Advocate: Shri Satpal Singh) ORDER
G. George Paracken, Member(J) Applicant is aggrieved by the departmental enquiry proceedings initiated against him under Rule 10 of the Employees Provident Fund Staff (Classification, Control & Appeal) Rules, 1971 which culminated in imposing upon him the penalty of dismissal from service.
2. Brief facts: The Respondents, vide Memorandum dated 26.06.2000, served the Applicant the following statement of Article of Charge:-
ARTICLE-I Shri Prem Singh Bisht, Upper Division Clerk while posted and functioning in the Sub-Accounts Office, Nehru Place during the year 1998-99 committed a gross misconduct in as much as he entered into a conspiracy with his wife Smt. Sadhna and Shri Sutikashan Suyal, UDC and to fraudulently withdraw sums of Rs. 11,515/- and Rs.3,060/- from the Employees Provident Fund Organization by representing that Smt.Sadhna was an employee of M/s Tarapore and Company, 502, Ansal Chamber II, 6, Bhikaji Cama Place, New Delhi despite knowledge that Smt. Sadhan was never employed with the said establishment.
By this aforesaid acts of omissions and commissions, Shri Prem Singh Bisht, UDC failed to maintain absolute integrity and devotion to duty and conducted himself in a manner unbecoming of an employee of the Central Board of Trustees in violation of Rules 3 (1(i),(ii)& (iii) of CCS (Conduct) Rules 1964 which are mutatis mutandis applicable to him by virtue of Regulation 27 of the EPF (Staff and Condition of Service) Regulation, 1962.
2. As the Applicant denied the aforesaid charge, an enquiry was held against him and the Enquiry Officer, vide his report dated 19.04.2002 held that the aforesaid charge was proved. The relevant part of the said report is reproduced as under:-
Analysis and Conclusion:-
Prosecution has relieved on the witness of the following:-
Shri Sutikashan Suyal on 04.10.2001 and 05.11.2001 as self-witness in his own case in respect of employment of Smt. Sadhana Bisht in M/s Tarapore & Company. Also on the evidence of Shri Mukesh Chaturvedi on 09.08.2001 as prosecution witness wherein he recognized signature of Shri Balachandran on letter dated 13.07.1999 from M/s Tarapore & Company and enclosed list dated 12.07.1999.
Deposition of Shri Anand Suyal on 19.10.2001 and 29.10.2001 that he prepared F-6A returns for 1996-97 and original returns and revised returns F-6 A for 1997-98, date of submission of claim by Smt.Sadhana Bisht on 15.031999 despite leaving service on 31.12.1998.
Change in name in original F-6A for 1997-98 and Revised Form 6A return for 1997-98 in the original it was Jagdish. Asstt. Govt. Examiners confirmation that form was filled by Shri Prem Singh Bisht.
Defence has relied on the following statement of Shri Sutikashan Suyal on 04.10.2001 wherein he stated that he knows through his son Shri Anand Suyal that Smt. Sadhana Bisht was employed with M/s Tarapore & Company.
Name of father was mentioned in claim instead of husband. Statement of Shri Anand Suyal who stated that she worked in M/s Tarapore & Company. It also states that it is a lie that Shri Mukesh Caurvedi appeared as witness on 09.08.2001 as is evident from proceedings dated 09.08.2001 and Shri Balachandran did not appear to confirm the letter dated 13.07.1999. In the scheme there is no limit stipulated for submission of claim.
During the inquiry it has come out that Mrs. Sadhana Bisht was not an employee of M/s Tarapore & Company this finding is based on a number of documents/witnesses. Foremost among these is the evidedence of Shri Mukesh Chatuvedi the then D.D.(Vig). North Zone who recognized the signature of Shri Balachandran the then General Manager of M/s Tarapore and Company who has stated in his letter dated 13.07.1999 that Mrs. Sadhana Bisht was never an employee of that company alongwith 19 others. Though Shri Balachandran, Ex-General Manager of M/s Tarapore & Company did not attend enquiry his signatures have been recognized by Shri Mukesh Chatuvedi. Shri Mukesh Chaturvedi appeared as Prosecution Witness in the cases of Shri Sutikshan Suyal and since his evidence was material in all the cases it has been taken into consideration in all the cases since all the cases are inter-linked. It also came out during the voluntary statement of Shri Vinod Kumar Jayant, Defence Witness in his evidence that it all came out from the enquiry of his claim by one Shri Manoranjan, who runs a full time canteen in the 5th Floor of 60, Skylark Building, Nehru Place, New Delhi-110019 that he had filed a claim for provident fund from M/s Tarapore & Company through he was not employed there. It has also came out duing the enquiry that Shri Anand Suyal wrote a letter dated 26.06.1999 (Exhibit S-1) to M/s Tarapore and Company which is also signed by Shri Sutikshan Suyal wherein he stated that he was ready to refund the amount of Rs.50,000/- to the company by 15.07.1999 when enquired in the cross-examination by Presenting Officer Shri Anand Suyal only said he does not know why he wrote that letter. Any one can draw a conclusion why one should write this letter. Thus Shri Anand Suyal only tried to mislead the enquiry. Shri Prem Singh Bisht was specifically asked and provided sufficient time to produce appointment letter etc. of his wife from the establishment but he was to able to produce any of said documents. He only produced a photocopy of wage sheet for the month of January 1998, which does not bear any signature of any of the Officers of M/s Tarapore & Company. Shri Sutikshan Suyals witness on 05.11.2001 is that he does not know whether Mrs.Sadhana Bisht was employed with M/s Tarapore & Company he was saying it only on the basis of intimation given by his son Shri Anand Suyal. Smt. Prem Singh Bisht in cross-examination has submitted that his wife did not sign any attendance register. It is not known whether anybody else submitted his claim or not to the company since no body appeared on behalf of M/s Tarapore & Company. Neither Defence produced anybody to prove it and since company submitted it to provident fund office. From the evidence and report of Dr. B.A.Vaid, Assistant Government Examiner that Shri Prem Bisht filled the Form 19B of Smt. Sadhana Bisht i.e. he was aware of the fact that his wife has claimed provident fund under A/c No. DL/18595/139 whole she had not worked in the said establishment. After carefully weighting the witnesses on behalf of prosecution and defence I hold the view that charge against Shri Prem Singh Bisht is proved.
3. The Disciplinary Authority, vide order dated 24/29.03.2004, in the circumstances of the case, the deposition of witnesses etc. came to the conclusion that the Applicant was guilty of the charges levelled against him and imposed upon him the punishment of dismissal from service which shall ordinarily be a disqualification for future employment under the Central Board of Trustees, EPFO. The relevant part of the said order reads as under:-
And Whereas in view of the above account the undersigned is of the considered opinion that Shri Prem Singh Bisht, UDC is guilty as charged. In additional to the circumstances of the case, the evidences on records, the witness etc., the undersigned has relied on the following facts also while reaching this conclusion.
1) The inquiry proceedings make it evident that Shri Sutikshan Suyal along with his son Shri Anand Suyal falsified the records of the establishment M/s Tarapore & Company to financially favour his friends and relatives. The proceedings in all the related cases were held simultaneously and Shri Sutikshan Suyal has since been dismissed from the service of EPFO. The statements of Shri B.P. Jain, AAO, dated 09.08.2001 & Shri Vinod Kumar Jayant, LDC dated 29.10.2001 proves that the fraudsters had become so emboldened so as to declare even a canteen operator working for over six years in SAO, Nehru Place as an employee of M/s Tarapore & Company and had attempted to withdraw sums from EPFO in his name. The name of his canteen operator was also inserted for the first time in the revised Form 6A of the establishment.
2) Shri Prem Singh Bisht has never adduced evidence that he had intimated his office regarding the employment of his wife through required to do so as per Rule 4(2) (ii) of the CCS (Conduct) Rules, 1964 which are applicable over employees of EPFO also.
3) The conspiracy angle is amply proved by way of other direct and circumstantial evidence emerging out of the following facts:-
i. The revised return wherein name of Smt. Sadhana was included was submitted in the EPFO Offices on 11.03.1999 and the claim of Smt.Sadhna was submitted on 15.03.1999. This becomes all the more meaningful in light of the fact that 13.03.1999 and 14.03.1999 were Saturday and Sunday respectively and that while Smt.Sadhna had claimed to have left the service of the establishment on 31.12.1998, she did not file her claim before 11.03.1999. The timing is too striking for being just coincidental.
ii. Shri Sutikashan Suyal, (or Shri Anand Suyal) the consultant of the establishment M/s Tarapore & Company, prepared the revised from 6A to benefit their relatives /friends but the Establishment vide its letter dated 13.07.1999 flatly denied that any of the 20 names figuring for the first time in the revised return were ever employed by the establishment.
iii. Further the fact that Shri Anand Suyal S/o Shri Sutikshan Suyal wrote a letter to M/s Tarapore & company promising to return a sum of Rs.50,000/- to the establishment proves the conspiracy angle to the hilt. This letter is also signed by Shri Sutikshan Suyal. Shri Anand Suyal in his deposition before the Inquiring Officer on 29.10.2001 had an explanation for this letter as already stated had no explanation for the purported employment of relatives in M/s Tarapore & Company.
Thus, it is crystal clear that Shri Sutikshan Suyal conspired to submit false returns in Form 6A of M/s Tarapore & Company to perpetrate a fraud on Employees Provident Fund Organisation by way of filing of bogus claims through his friends /relatives and Shri Prem Singh Bisht colluded with him in this exercise so as to derive undue benefit in the name of his wife. By his action, Shri Prem Singh Bisht, UDC ( under suspension) has violated rules 3 (1) (i), (ii) & (iii) of the CCS (Conduct) Rules 1964 which are mutatis mutandis applicable to him by virtue of Regulation 27 of the EPF (Staff and Condition of Service) Regulation ,1962. The entire episode conveys that there is a loss of faith in Shri Prem Singh capacity to handle the enormous sums of money of EPFO maintained by it is in a fiduciary capacity.
AND WHEREAS having considered the facts and circumstances of the case, the gravity & the fraudulent nature of the offence committed and the level of involvement of Shri Prem Singh Bisht, the undersigned is of the considered view that a penalty of dismissal from service which shall ordinarily be a disqualification for further employment under the Central Board of Trustees, EPFO shall be adequate, just and fair.
NOW, therefore, the undersigned in exercise of the powers vested in him by virtue of the Schedule annex to EPF Staff (Classification, Control & Appeal) Rules 1071 hereby imposes the penalty of dismissal from service which shall ordinarily be a disqualification for future employment under the Central Board of Trustees, EPFO upon Shri Prem Singh Bisht, UDC.
4. The Applicant filed an appeal against the aforesaid order. As the same was not considered, he approached this Tribunal vide OA No.1725/2005 and the same was disposed of, vide order dated 16.08.2005, with a direction to the Respondents to dispose of the aforesaid appeal by a reasoned and speaking order. Thereafter, Appellate Authority, vide its order No.Vig.III (20) 99/5505 dated 28.09.2005, upheld the order of the Disciplinary Authority and dismissed his appeal. The operative part of the said order is also reproduced:-
V. The report of the Inquiry officer was based on facts and documentary evidences adduced before him during the course of enquiry. Further, Disciplinary Authority after examination of the reports and facts and circumstance of the case imposed the aforesaid penalty. Therefore the contention has no merit.
4. AND WHEREAS considering the totality of the facts and circumstances in this case and the submissions made by the appellant it was found that no fresh grounds have been adduced by the appellant in this representation other than the grounds already taken up and discussed at the time of imposition of the penalty by the Disciplinary Authority. Further, it is noted that the official has tendered written apology for the sole mistake, which proves that as a co-conspirator he defrauded the Organization. The Said misconduct cannot be termed as a simple act of mistake but a serious offence, which needs to dealt with severely. While examining the appeal on parameters as prescribed vide rule 23 (2) of EPF staff (CC&A) Rues 1971, it is seen that inquiry has been conducted as per procedure prescribed and the findings of Disciplinary Authority are warranted by the evidence on record. The penalty imposed is also commensurate with the gravity of offence.
5. NOW THEREFORE, having come to the conclusion that there are no extenuating circumstances warranting tampering with the order of the Disciplinary Authority, the undersigned, deems it appropriate to uphold the decision of the Disciplinary Authority to dismiss the official from service which shall ordinarily be a disqualification for future employment under the Central Board of Trustees, EPFO and reject the Appeal dated 30.04.2004 preferred by the appellant and in exercise of the powers of the Appellant Authority, as vested vide Rules 23 of EPF Staff CCA Rule, 1971, I, order accordingly.
5. The Applicant has also filed a Revision Petition but the same was also dismissed vide order dated Nil May, 2006. The relevant part of the said order reads as under:-
NOW WHEREFORE, having come to the conclusion that there are no extenuating circumstances warranting tampering with the order of the Disciplinary Authority as confirmed by the Appellate Authority, the undersigned, deemed it appropriate to upheld the decision of the Disciplinary Authority and Appellate Authority and rejected the Revision Petition preferred by the appellant and in exercise of the powers of the Revisionary Authority, as vested vide Rule 25 of EPF Staff CCA Rules, 1971, I order accordingly.
6. Thereafter, the Applicant challenged the aforesaid orders before this Tribunal vide OA No.2156/2006 but dismissed it. The relevant part of the said order reads as under:-
15. We have gone through the response of the applicant to the chargesheet as well as his representation against the inquiry report and find that it cannot be said that the disciplinary authority has ignored the arguments advanced by the applicant. A perusal of the appellate order as well as the order passed on the revision petition also shows that these are detailed, reasoned and speaking orders and it cannot be said that he grounds put forward by the applicant were left unconsidered and, therefore, the punishment has been wrongly confirmed against him. A perusal of the inquiry report shows that it is a reasoned one which records the Article of Charge, the case against the applicant, the defence brief and then having narrated the facts analysis them to reach the conclusion that the charge stood proved against the applicant. The enquiry proceedings cannot be justifiably faulted in terms of Rule 14 (23) and 14 (18) of the CCS (CCA) Rules, 1965 as there is no material to show that these are not separate and different Rules than the EPF Staff (CCA)Rules, 1972 under which the disciplinary proceedings have been held. There also appears to be no trace in the available records of the applicant having expressed his grievance at any stage during the proceedings in terms of such provisions contained in the CCS (CCA) Rules, 1965.
16. In his deposition, Shri Mukesh Chaturvedi is stated to have confirmed the signature of Shri Balachandran, General Manager of the Company appearing on the letter dated 13.07.1999 addressed to the Deputy Director (Vigilance), Northern Zone which mentioned that 20 persons in the enclosed list had never worked for the Company, which included the name of the applicants wife. Admittedly the Inquiry held against Shri Sutikshan Suyal stands concluded with his dismissal wherein Shri Mukesh Chaturvedi had deposed as above. Be that as it may, it has come on record during the enquiry against the applicant that two returns in Form 6A were prepared and the second one carried the name of the applicants wife against an Account Number which was in the name of Shri Jagdish as per the first return. Sh. A.S. Saxena, Prosecution Witness confirmed that the 2nd Form 6A relating to same year 1997-98, received on 11.03.1999, carried entries that were different from the earlier Form 6A verified by him. Thus against the same Account Number these were evidently different entries in Form 6A first received on 13.10.1998 and 2nd received on 11.03.1999. It is not the case of the applicant that Shri Jagdish is no employee of the Company and did not hold that Account number. As per the material on record the second Form 6A does not appear to have been prepared by the authorized person in the Company. Immediately on receipt of the second return, steps were initiated by the applicant on behalf of his wife for withdrawal of the money for depositing in a joint account with his wife in the Bank. The expert advice of the examiner at Shimla confirmed that the applicant did fill up the claim forms in respect of his wife for withdrawal of the money. The applicant could not produce any appointment letter etc. of his wife. He only produced wage sheet of January, 1998 without any signature of authentication. In crossexamination applicant submitted that this wife did not sign any attendance register. It would be difficult to accept that the husband would knowingly violate the rules to keep the authorities in the dark about his wifes job, or that he would not know of the employment of his own wife and that if she was employed in any particular place, he would be unable to produce any document or make a reliable statement at all, if necessary, with the assistance of his wife, to confirm the employment and justify his role in making the claim by filling the necessary claim forms on her behalf, given the consequences of failing to do so in the inquiry. It cannot therefore be said that the applicant did not get reasonable opportunity to defend himself during the disciplinary proceedings but fialed to succeed. In State Bank of Patiala and Ors. Vs. S.K.Sharma, reported in JT 1996 (3) SC 772, the Honble Supreme Court held as under:-
Justice means between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise.
17. At this juncture it would be relevant to quote from the judgment of the Honble Supreme Court in Govt. of Tamil Nadu vs. A. Rajapandain, reported in AIR 1995 SC 561. It was held as under:-
The Administrative Tribunal cannot sit as a Court of Appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority.
The Apex Court in State of Orissa v. Bidya Bhushan Mohpatra, AIR 1963 SC 779 had pointed out that an order of punishment can be supported on any finding as to the substantial misdemeanour upon which the punishment can lawfully be imposed and it was not for the court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. In the decision in Krishna Chandra Tandon v. Union of India (1974) 4 SCC 374 the Apex Court has also observed that if an allegation or two fell, it hardly mattered if the order could be supported on other counts. Yet again in the case of Union of India v. Parma Nand, reported in AIR 1989 SC 1185, the Honble Court, inter-alia observed that the Tribunal cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of its is found to be irrelevant or extraneous to the matter.
18. Having considered the pleadings and the submissions made before us in the context of the law noticed herein we are satisfied that there is sufficient material on record for coming to the view that this cannot be said to be a case of no evidence. So long as the finds are based on evidence no interference is called for. The application is therefore, dismissed. No order as costs.
7. However, the Judicial Member of the Bench passed a dissenting order holding that the orders in disciplinary proceedings were passed in contravention of the statutory rules and principles of natural justice. Therefore, they cannot be sustained. Accordingly, the OA was partly allowed and the impugned orders were quashed and set aside. The Respondents were also directed to immediately reinstate the Applicant with all consequential benefits. However, liberty was given to resume the proceedings from the stage of examination of witnesses Balachandran and Mukesh Chaturvedi and in that event, law would take its own course. The relevant part of the said order reads as under:-
8. It is trite that in the inquiry, the document, which is forming part and material therein, shall be the sole criteria to adjuge the delinquent as guilty or otherwise but any document, which has been brought out into consideration without being confronted to the concerned, delinquent officer would not only be deprived of a reasonable opportunity but also would be an antithesis to the cardinal principle of audi alteram partem. On that count, the decisions in S.B. Rameshs case (supra) and Hardwari Lals case (supra) cover the issue and we cannot decide the issue in oblivion of the aforesaid decision.
9. From the perusal of the order passed by the Disciplinary Authority, Shri Balachandrans testimony as well as the testimony of Shri Mukesh Chaturvedi, were taken into consideration and when his point was raised before the Appellate Authority, it has been rejected on the ground that one Mukesh Chaturvedi was examined. The fact that Applicant was taken aback by introduction of testimony of Mukesh Chaturvedi recorded in a different proceeding. The Applicant has challenged the aforesaid in his written statement and appeal thereof. As such, I cannot say that the Applicant has waived of his rights to challenge.
10. In the result, for the foregoing reasons, as the orders passed are in contravention of the statutory rules and principles of natural justice cannot be sustained. Accordingly, OA is partly allowed. Impugned orders are set aside. Respondents are directed to forthwith reinstate the applicant in service with all consequential benefits. However, if so advised, they will be at liberty to resume the proceedings from the stage of examination of Balachandran and Mukesh Chaturvedi and in that event, law shall take its own course.
8. As prescribed under the Central Administrative Tribunals Act, 1985 and the rules framed thereunder, the matter was placed before a third Member and vide order dated 22.04.2008, she partly disagreed with the findings of the Member (Judicial) to the extent that applicant needs to be reinstated in service or given any consequential benefits. However, she held that the orders dated 29.3.2004 and May, 2006 passed by respondents and findings recorded by Inquiry Officer are not sustainable. Accordingly, they are quashed and set aside. However, liberty is given to the respondents to proceed from the stage of examining Sh. Mukesh Chaturvedi in the enquiry in the presence of applicant by giving him opportunity to cross-examine the said witness and then to pass fresh orders, after complying with the procedure as laid down in the rules. It was also held that the Respondents were not required to reinstate him in service but they may put him under suspension for the purpose of completing the above procedure from the stage of examining Shri Mukesh Chaturvedi. Intervening period shall be decided by the respondents by issuing specific order, after final orders are passed in the departmental enquiry and the orders dated 29.03.2004 and May, 2006 passed by the Respondents and findings recorded by the Inquiry Officer are not sustainable. The operative part of the said order reads as under:-
31. I however hasten to add here that there is a technical flaw inasmuch as reliance has been placed on the statement of Shri Mukesh Chaturvedi by the Inquiry Officer as well as disciplinary authority while giving findings and imposing punishment by observing that Sh. Mukesh Chaturvedi had recognized the signatures of M/s Balachandran. Admittedly, he was not produced in applicants enquiry. Law is well settled that reliance can be placed on a witness in an enquiry only if he is produced in the enquiry otherwise delinquent loses his valuable right to cross-examine the said witness. Had no reliance been placed on his statement, I would not have interfered in the matter. It is also not the case of respondents that if enquiry was held. Since enquiries were held separately and Inquiry Officer as well as disciplinary authority both have placed reliance on his statement, it was incumbent on the part of respondents to produce him as a witness in the Inquiry Officer so that applicant could have cross-examined him. To this extent there is an irregularity committed by the respondents, therefore, I would agree with the Honble Member (J) to the extent that the finding & orders are liable to be set aside by giving liberty to the respondents to start the proceedings from the stage of calling Shri Mukesh Chaturvedi as a witness in the enquiry and after recording his statement chance has to be given to the applicant to cross-examine the said witness. Thereafter fresh orders should be passed after complying with the procedure as per rules. I do not agree with the Honble Member (J) with regard to the direction for reinstatement and consequential benefits because Honble Supreme Court has repeatedly held whenever there is a technical irregularity found in the enquiry, matter should be remitted back to the authority for starting the enquiry from that stage. In such circumstances, no direction should be given for reinstatement or consequential benefits. At this stage, it would be relevant to quote from the judgment of Honble Supreme Court in the case of State of Punjab & Ors. Vs. Dr. Harbhajan Singh Greasy reported in 1996 (9) SCC 322, wherein it was held as under:-
It is now a well- settled law that when the enquiry was found to be faulty, it would not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry, the delinquent must be deemed to be under suspension. The consequential benefits would depend upon the result of the enquiry and order passed thereon.
32. In the case of NTC (WBAB&O) Ltd. & Anr. Vs. Anjan K. Saha reported in 2004 (7) SCC 581, Honble Supreme Court held as under:-
9. We fail to appreciate the reasoning of the High Court in the instant case that in addition to the procedural infirmity of non-supply of enquiry report, there being non-compliance of clause 14 (4) (c) of Standing Order requiring grant of opportunity of hear-ing against proposed penalty, the employee has to be granted relief of reinstatement with full back wages and the employer can be given liberty to hold a de novo enquiry.
10. As stated by the High Court, we do not find that the language of clause 14(4)(c) is mandatory. In any case, non-compliance thereof cannot be held to be a more vitiat-ing factor than non-supply of enquiry re-port. If the Constitution Bench of this Court in cases of non-supply of enquiry report di-rects the procedure to be adopted by allow-ing the employer to re-start the enquiry from the stage of supply of enquiry report with-out reinstating the employee, why such a course should not be directed to be adopted where the other grievance of the employee is denial of opportunity to show cause against proposed penalty. When the Court can direct a fresh enquiry from the stage of supply of enquiry report the next step in the enquiry of giving opportunity against the proposed penalty can also be directed to be taken. After the fresh enquiry is over from the stage of supply of enquiry report, the employee can be granted opportunity against proposed penalty in terms of clause 14(4)(c) of the Model Standing Order Rules. Conse-quential order, if any passed, shall abide the final result of the proceedings. As held in the case of B. Karunakar & Ors. (supra), if the employee is cleared of the charges and is reinstated, the disciplinary authority would be at liberty to decide according to law how it will treat the period from the date of dismissal till the period of reinstatement and the consequential ben-efits.
11. As a result of the discussion afore-said this appeal preferred by the employer is partly allowed. The impugned orders of the High Court to the extent they directed reinstatement in service of the respondent with full monetary dues are set aside. It is di-rected that in accordance with the legal position explained in the case of B. Karunakar & Ors. (supra) [in paragraph 31 as quoted above], there would be a formal reinstatement of the employee for the limited purpose of enabling the employer to proceed with the enquiry from the stage of furnishing him with the copy of the enquiry report. The employer can place him under suspension for completing the enquiry. After conclusion of the enquiry in the manner as directed in the case of B. Karunakar & Ors. (supra), if the employee is exonerated, the authority shall decide according to law how the intervening period from the date of his dismissal to the date of his reinstatement shall be treated and what consequential benefits should be granted. If on the contrary, the employee is found to be guilty, before taking final decision he should be heard on the proposed penalty in accordance with clause 14(4)(c) of the Stand-ing Order on the quantum of punishment.
33. In view of above settled position, with utmost regards, I do not agree with the Member (J) to the extent that applicant needs to be reinstated in service or given any consequential benefits. Except placing reliance on Shri Mukesh Chaturvedis statement, all other reasonings given by the respondents are found to be valid. Since findings and orders are not substantial due to above technical irregularity, I hold that the orders dated 29.3.2004 and May, 2006 passed by respondents and findings recorded by Inquiry Officer are not sustainable. Accordingly, they are quashed and set aside. However, liberty is given to the respondents to proceed from the stage of examining Sh. Mukesh Chaturvedi in the enquiry in the presence of applicant by giving him opportunity to cross-examine the said witness and then to pass fresh orders, after complying with the procedure as laid down in the rules. I clarify that applicant would not be entitled to either reinstatement or consequential benefits because charge is otherwise proved against the applicant. Respondents may put the applicant under suspension for the purpose of completing the above procedure from the stage of examining Shri Mukesh Chaturvedi. Intervening period shall be decided by the respondents by issuing specific order, after final orders are passed in the departmental enquiry. This exercise shall be completed preferably within a period of three months from the date of receipt of a copy of this order, provided applicant cooperates with them, otherwise it would be open to the respondents to pass appropriate orders by giving reasons, therefore, applicant is directed to cooperate.
34. OA stands disposed off with above directions. No costs.
9. Thereafter, the Disciplinary Authority, vide order dated 13.06.2008, placed the Applicant under suspension and vide the subsequent order dated 24.07.2008, in exercise of the powers conferred on him by sub-rule (2) of Rule 10 of Employees Provident Fund Staff (Classification, Control and Appeal) Rules, 1971 appointed Shri R.K. Singh, RPFC-II as Enquiry Officer to enquire into the charge question from the stage of examination of Shri Mukesh Chaturvedi. The Enquiry Officer in turn, issued notice to applicant as well as Shri Mukesh Chaturvedi to appear before him for further proceedings on 05.09.2008. On the said date, the Applicant appeared but Shri Mukesh Chaturvedi did not. Thereafter, the Enquiry Officer adjourned the proceedings to 22.09.2008 and then on 10.10.2008. The Applicant did not attend on those days as he was not given the Subsistence Allowance. But Shri Chaturvedi again did not appear without any reason. During the proceedings held on 10.10.2008, the Presenting Officer informed the Enquiry Officer that the request of the Applicant for payment of subsistence allowance was decided by the competent authority, vide order dated 06.10.2008, and the same will be paid to him soon. But at the same time, the Presenting Officer submitted before the Enquiry Officer that since the Applicant has not been appearing in the matter, no further notice was required to be sent to the prosecution witness till the Applicant appears in the enquiry. The Enquiry Officer accepted the request of the Presenting Officer and adjourned the matter to 31.10.2008 and directed the Applicant alone to appear. But again the case was adjourned to 14.11.2008 and then to 05.12.2008 and then to 24.12.2008 and to 16.01.2009. The Enquiry Officer has also informed the Applicant on 05.12.2008 that it was in his interest that he should appear in the hearing and to cooperate with the enquiry, failing which he will be constrained to proceed as per the material available on record. As the Respondents were not paying him the subsistence allowance after the recommencement of the enquiry proceedings on 05.09.2008 and during its pendency from that date, the Applicant had approached this Tribunal vide OA No.380/2009 and this Tribunal, vide order dated 07.07.2009, disposed of the same with the direction to the Respondents to release the subsistence allowance along with arrears within a period of one month from the date of receipt of a copy of this order. However, the Enquiry Officer without waiting for the Disciplinary Authority to pay him the subsistence allowance, closed case, vide its order dated 17.08.2009, and the said order, being a short one, is reproduced as under:-
Inquiry Report in respect of Shri Prem Singh Bisht. Upper Division Clerk under suspension.
I had been appointed Inquiry Officer vide Order No. HR/VIG/616(23)/PS/341/71 dated 08.08.2008. Undersigned took the Enquiry matter from the stage where the Inquiry was vitiated and Shri Mukesh Chaturvedi the then Dy. Director (Vigilance) was called for cross examination Shri Prme Shingh Bisht, the charged Official was afforded the opportunity of cross examining Shri Mukesh Chaturvedi the then Dy. Director ( Vigilance). However, Shri Prem Singh Bisht the Charged official appeared only once during the course of hearing on 05.09.2008. Thereafter, he did not appear on the following dates 22.9.2008, 10.10.2008, 31.10.2008, 14.11.2008, 05.12.2008, 24.12.2008 and 16.1.2009. The charged official instead of attending the hearing harped upon the issue of payment of subsistence allowance to him and never co-operated in the Inquiry. His representation was forwarded to competent authority for consideration. In view of the foregoing I have nothing to add to the Inquiry Report already submitted by undersigned in this matter in the year 2002 except to the fact that the Charged Official did not avail the opportunity of cross examining the departmental witness Shri Mukesh Chaturvedi the then Dy. Director (Vigilance). Copies of proceedings of each date of hearing are enclosed for ready reference to the competent authority for consideration. Disciplinary authority may take further necessary action accordingly.
10. The Applicant filed a representation against the aforesaid report but the Disciplinary Authority, vide its order dated 22.12.2009, again imposed the penalty of dismissal upon him. The relevant part of the said order reads as under:-
And Whereas the order dated 22.04.2008 of the Honble CAT is specific through which the respondents have been directed to complete the inquiry preferably within three months provided the applicant cooperate with them otherwise it will be open to the respondents to pass appropriate orders by giving reasons and the OA was disposed with direction to the applicant to cooperate. It is, however, observed that the Charged official has failed to cooperate with the Inquiry Officer. He failed to appear before the Inquiry Officer on the hearing held on 22.09.2008, 10.10.2008, 14.11.2008, 05.12.2008, 24.12.2008 and 16.01.2009 The Inquiry Officer report dated 17.08.2009 was sent to the Charged Official vide letter No. Admn-I/Vig. VII (142)1991/18725 dated 11.12.2009 to submit his objection/representation, if any, within fifteen days. In response, he has failed to furnish any valid reasons as to why he did not appear before the Inquiry Officer on the dates mentioned here in above and thus failed to comply with the order of the Honble CAT. I am therefore of the opinion that Shri Prem Singh Bisht, Charged Official has willfully failed to avail the opportunity to cross examine the departmental witness Shri Mukesh Chaturvedi.
Now, therefore the undersigned in exercise of the powers vested in him by virtue of Schedule annexed to EPF Staff (Classification, Control, & Appeal) Rules 1971 hereby imposes the penalty of dismissal form service which shall ordinarily be a disqualification for future employment under the Central Board of Trustees, EPFO upon Shri Prem Singh Bisht UDC( under suspension).
11. The Appeal filed against the aforesaid order of the Disciplinary Authority was also rejected vide order dated 22.06.2012 having operative part as under:-
On going through the relevant records produced before me and careful application of my mind, I am of the opinion that the Disciplinary Authority while imposing penalty has followed the procedure laid down in the Rules. The file of the Inquiry proceedings reveals that the Inquiry Officer has followed the procedure laid down in EPF CCA Rules, 1971 to conduct the inquiries. The Disciplinary Authority has conducted a detailed inquiry by the appointment of an Inquiry Officer afresh. The findings of the Inquiry Officer are also based upon the proper analysis of the evidence adduced during the proceedings and the pleadings of the department as well as that of the Appellant.
It is also seen that the Appellant has been given a fair and reasonable opportunity to defend his case before the Inquiry Officer. It is seen that the appellant appeared only once during the proceedings. He did not co-operate in the proceedings and did not avail himself of the opportunity of cross-examining the prosecution witness Shri Mukesh Catuvedi in contravention to the CAT order 22.04.2008. The Disciplinary Authority has also given a copy of the inquiry report to the Appellant and the Appellant has submitted representation to the findings of Inquiry. There is, therefore, no deviation from the procedure laid down in the Rule 23(2) of EPF CCA Rules, 1971. Therefore, there is no failure of justice. As regards findings, it is seen that there is no material change in the second inquiry proceedings as no new facts have been brought to the notice of the Disciplinary Authority/ Inquiry Officer by the appellant. The appellant has not given any valid reason as to why he could attend the hearings and ultimately failed to cross-examine the witness Shri Mukesh Chaturvedi despite 07 adjournments/hearings. The Disciplinary Authority while passing the said order dated 23.12.2009 has taken into consideration the findings of Inquiry Officer and the representation of the Appellant to the Inquiry Report. It is crystal clear from the facts of the case that the Inquiry officer as well as the Disciplinary Authority have properly analyzed the evidence to establish misconduct on the part of the Appellant. I, therefore, hold that there is no infirmity in the procedure adopted by the Disciplinary Authority which results into miscarriage of justice to the Appellant.
In other words, the Appellant didnt appear to put forth his cross-examination as he had probably nothing to add fresh to the already existing position.
In view of the above, it is felt that the penalty imposed by the Disciplinary Authority is thus not disproportionate to the gravity of misconduct committed by the Appellant and I do not find any reason to interfere with the said penalty order dated 23.12.2009.
ORDER I, V.N. Sharma, Additional Central Provident Fund Commissioner, therefore, in exercise of the powers of the Appellate Authority, as vested vide Rule 23 of EPF Staff CCA Rule, 1971 hereby reject the Appeal dated 15.02.2010 preferred by the Appellant for the reasons mentioned herein above.
12. The Respondents have also passed another order dated 25.09.2012 impugned in this OA directing the Applicant to deposit the entire amount of Rs.3,85,462/- paid to him as subsistence allowance. The said letter is reproduced as under:-
Employee Provident Fund Organisation (Ministry of Labour & Employment, Government of India) Regional Office, Delhi (North) Bhavishya Nidhi Bhawan, 28 Community Centre,Wazirpur Industrial Area, Delhi-110052 No.Admn.-I Vig.VII/(142)/8898) Dt. 25.09.2002 To Shri Prem Singh, Ex-UDC H. NO. 9, Block NO. 9 Spring Field Colony, Sector-31 Faridabad, Haryana Sub:- Corrigendum No. Admn.-I/Vig.VII(142)/8352 dated 24.07.2012 Notice for recovery of excess amount regarding.
Sir, Reference is invited towards this office Officer No.Adm. /Vig. VII (142) 8307/8452 dated 24.07.2012 amending the Office order No. Admn.-I/Vol. II/(142)/582 dated 13.06.20089 conveying that the date of deemed suspension would take effect from w.e.f 13.06.2008 i.e. the date of issuance of order in place of 29.03.2004 in pursuance of Honble CAT (PB) New Delhi order dated 24.04.2008 for the purpose of completing the procedure of cross-examining of prosecution witness Sh. Mukesh Chaturvedi, the then DD (Vigilance) as w.e.f 13.06.2008 as the charges were otherwise proved and the charged official was not entitled for reinstatement and consequential benefits.
3. Since the subsistence allowance for a sum of Rs.4,02,468/- was paid to you on the basis of the erstwhile order, now, a sum of Rs.3,85,462/-(Rupees Three Lac Eighty Five Thousand Four Hundred and Sixty Two Only) is recoverable from you, after issuance of above said corrigendum.
4. Therefore, you are hereby directed to deposit the entire amount as mentioned at Para 2 above, within a week of receipt of this notice, failing which necessary legal action may be taken against you for recovery of the excess amount paid.
Yours faithfully (V.K. Gupta) Asstt. P.F. Commissioner(Admn.).
13. The Applicant has challenged the aforesaid orders in this OA seeking following the following reliefs and interim relief:-
Reliefs (i) quash and set aside order dated 22/23.12.2009 passed by Respondent No.4 vide which the Applicant has been awarded punishment and order dated 22.06.2012 passed by the Respondent No.3 vide which the appeal of the Applicant has been rejected with a further consequential direction to reinstate the Applicant in service;
(ii) quash and set aside the findings submitted by the Enquiry Officer vide which the charge has been held proved against the Applicant;
(iii) quash and set aside the Order dated 25.09.2012 passed by the Respondents vide which sum of Rs.3,85,462/- has been held to be recovered from the Applicant;
(iv) to direct the respondents to grant all the consequential benefits;
(v) any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the Applicant; and
(vi) cost of the proceedings be awarded in favour of the applicant and against the Respondents.
Interim Relief The respondents may be directed not to make any recovery in pursuance of the order dated 25.09.2012 till the disposal of the OA in view of the submissions made herein above.
14. In this regard, the learned counsel for the Applicant relied upon the judgment of the Apex Court in the case of Ghansyam Das Srivastava Vs. State of Madhya Pradesh AIR 1973 SC 1183 wherein it has been held that the enquiry report passed ex-parte, when the petitioner under suspension regrets his inability to attend the enquiry till the subsistence allowance was paid to him and in fact could not attend for want of funds, is vitiated and in violation of Article 311 (2) of the Constitution. The relevant part of the said order reads as under:-
5. With respect, we find it difficult to share the view taken by the High Court. Paragraph 5 of the writ petition expressly alleges that on December 5, 1964, the appellant sent a letter to the Enquiry Officer informing him that unless he was paid subsistence allowance he would not be able to face the enquiry proceedings. The letter was filed along with the petition. It is annexure H. The letter stated that "Until and unless I am paid subsistence allowance.......I categorically refuse to face any proceeding......as I have no capacity to do so because of acute shortage of funds." (emphasis added). This is obviously specific pleading on the point that for non-payment of subsistence allowance he was short of funds and could not attend the enquiry. It is true that his affidavit does not give any particulars about his sources of income and the estimate of expenses to be incurred in the enquiry. But it would prima facie suggest that he had no other sources of income except his pay. If he had no other sources of income, he could not invent them for the purpose of mentioning them in the affidavit. More significantly, the Government affidavit does not allege that he had any other source of income except pay. The fact that he had been drawing a monthly pay of Rs. 300/- till October 1964 would not necessarily show that he had sufficient money to enable him to go to Jagdalpur to attend the enquiry in February, 1965. He was suspended on October 30, 1964 and thereafter he did not get subsistence allowance until March 20, 1965. Having regard to the prevailing high prices, it is not possible to draw any adverse inference against him from the mere circumstance that he had been receiving a monthly pay of Rs. 300/- till October, 1964. The fact that he filed a writ petition immediately on the passing of the order of dismissal and thereafter came in appeal to this Court, would not establish that he had enough resources to enable him to attend the enquiry. It seems to us that on the whole the High Court has gone by conjectures and surmises. There is nothing on the record to show that he has any other source of income except pay. As he did not receive subsistence allowance till March 20, 1965 he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965 after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Art. 311 (2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings.
6. Accordingly, we allow the appeal with costs. Setting aside the order of the High Court, we allow the writ petition and quash the order of the Government dated June 8, 1966 whereby the appellant was dismissed from service. It will be open to the Government to start a fresh enquiry in accordance with law against the appellant.
15. He has also relied upon the judgment of the Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another JT 1999 (2) SC 456 wherein it has been held that Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'Subsistence Allowance', so that the employee may sustain himself. In the said judgment the Apex Court has also referred to its earlier judgment in the case of O. P. Gupta v. Union of India, (1987) 4 SCC 328 wherein it has been held that the very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is "to remain alive as on food; to continue to exist". "Subsistence" means - means of supporting life, especially a minimum livelihood. Further the Apex Court held that even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated and the act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death. Finally, the Apex Court held that not providing any Subsistence Allowance during the period of suspension and the adjournment prayed for by him resulting in ex parte proceedings, the employee has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex parte, stand vitiated. The relevant part of the said order reads as under:-
29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'Subsistence Allowance', so that the employee may sustain himself. This Court in O. P. Gupta v. Union of India, (1987) 4 SCC 328 : (AIR 1987 SC 2257) made the following observations with regard to Subsistence Allowance (para 15 of AIR) :
"An order of a suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India (AIR 1958 SC 300) is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance - generally called subsistence allowance - which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is "to remain alive as on food; to continue to exist". "Subsistence" means - means of supporting life, especially a minimum livelihood."
(Emphasis supplied)
30. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death.
31. On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt. The Govt, only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the government or any other employer, like Instrumentalities of the Govt. or Statutory or Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other Statutory Rules including Certified Standing Orders. The Fundamental Rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chanderbhan, (1983) 3 SCR 337 : (1983) 3 SCC 387 : AIR 1983 SC 803 struck down a Service Rule which provided for payment of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer, (1986) 3 SCC 131 : (1986) 2 SCR 1059 : AIR 1986 SC 1168 and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of Subsistence Allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Dass Shrivastva v. State of Madhya Pradesh, (1973) 1 SCC 656 : AIR 1973 SC 1183.
32. The question whether the appellant was unable to go to Kolar Gold Fields to participate in the inquiry proceedings on account of non-payment of Subsistence Allowance may not have been raised before the Inquiry Officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.
33. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex parte, stand vitiated.
16. The Respondents have filed their reply stating that one of the officials, Shri Stikshan Suyal working as UDC as Consultant at the relevant time in then Sub Accounts Office, Nehru Place falsified the records of the establishment with mala fide intention of financially helping Mrs. Sadhna and other friends/relatives. Mrs. Sadhna is the wife of the Applicant and the whole conspiracy was in his knowledge. He colluded in the conspiracy to falsify the records and obtain benefits by unfair means. Shri Suyal got prepared a revised fraudulent return in Form-3A/6A for the year 1997-98. It was received in Sub-Accounts Office, Nehru Place on 11.03.1999. In the said return, names of many individuals appearing as members in the earlier return were replaced with the names of relatives/friends of Shri Sutikshan Suyal. In the Original form 6A for 1997-78 submitted to the then SAO, Nehru Place on 13.10.1998, the name of the original member against A/c No.DL/18595/139 was Shri Jagdish whereas in the revised return submitted to the then Sub-Accounts Office, Nehru Place, the same was changed to Mrs. Sadhana. The wages paid to the individuals whose names were put in the second return were shown as much higher than those of the individuals whose names appeared in the first return against the same PF Account numbers. The inflated wages were purportedly shown with the intention of claiming higher deductions and deposit of PF dues in the PF Office and claiming the same by filing bogus PF claims. After receipt of the second return, the Applicant filled up a bogus P.F. withdrawal claim in Form-19 and Form 10-C in his own handwriting in name of Smt. Sadhana against A/c No.DL/18595/139. Shri B.A. Vaid, the Assistant Govt. Examiner who appeared before the Inquiry Officer on 13.09.2001 as Prosecution Witness deposed that writing in the claim form was that of the Applicant on the basis of various applications filed by him in the office and provided as sample to the Assistant Govt. Examiner and also exhibited during the enquiry. The claims were processed and two cheques bearing No.681422 and 689040 both even dated 15.04.1999 for Rs.11,515/- and Rs.3060/- respectively were sent in A/c No.7112 of Dena Bank, Nehru Place which is admittedly a joint account in the name of the Applicant and his wife. The Applicant had also given his office address, i.e., 60, Skylark Building, Nehru Place, New Delhi-110019 to the Bank. Later, the said amounts were withdrawn from the Bank. Shri Sutikshan Syyal was dismissed from service after charges were proved against him in the departmental enquiry under Rule 10 of the EPF (Staff) CCA Rules, 1971. Applicant could not produce any evidence like appointment letter, Identity Card, Attendance Sheet in support of employment of his wife in M/s Tarapore and Co. However, he produced a copy of Wage Sheet for the month of June, 1998 which was not signed/attested by anyone.
17. The Prosecution Witness Shri B.P. Jain, then SAO, Nehru Place confirmed in his deposition dated 09/08/2011 and 23/08/2001 that Applicant used to prepare the returns of M/s Tarapore and Company as told to him by the officials of the said establishment. The statement of Shri Vinod Kumar Jayant, then LDC dated 29.10.2001 has also proved that the fraudsters had become so emboldened so as to declare even a full time canteen operator Shri Manoranjan working for over six years in SAO, Nehru Place as an employee of M/s Tarapore and Co. and had attempted to withdraw sums from EPFO in his name. The name of this canteen operator was also inserted for the first time in the revised Form-6A of the Establishment. The Prosecution Witness Shri A.S. Saxena, the then Enforcement Officer in his deposition dated 23.08.2001 confirmed that he had signed the original return in F-6A of M/s Tarapore and Co. during routine inspection on 21.10.1998 and further confirmed that the revised return in Form-6A submitted on 11.03.1999 has several additions/alterations. Vide letter dated 13.07.1999, Shri Balachandran, General Manager of M/s Tarapore and Co. intimated that none of the 20 names mentioned in the list enclosed were ever employee of M/s Tarapore and Co. The name of Mrs. Sadhna was shown at Sr.No.4 of the enclosed list. The Applicant had tendered a written apology for the mistake which proves that as a co-conspirator, he defrauded the organization. The defrauded amount, amounting to Rs.14,575/- (PF Rs.11,515/- and FPF Rs.3060) has also been refunded to the Department including interest, vide Pay Order No.711425 dated 10.07.03 for Rs.17000/- credited in EPF A/c on 05.09.03 by the beneficiary of the fraudulent amount, Smt. Sadhana, wife of the Applicant, although under protest.
18. Shri Balachandran , G.M., Authorized Signatory of M/s Tarapore & Co. was made a prosecution witness but in spite of repeated summoning during the Inquiry he did not appear as witness before the Inquiry Officer and his evidence could not be taken. He failed to turn up as he had reportedly quit his services with M/s Tarapore & Company. However, Shri Mukesh Chaturvedi the then DD (Vg) appeared as Prosecution Witness in the case of Shri Sutikshan Suyal had recognized the signature of Shri Balachandran. As the case of the Applicant was similar and interlinked to that of Shri Sutikshan Suyal the evidence of Shri Mukesh Chatuvedi in the case of Shri Sutikshan Suyal was taken as evidence in the case of Prem Singh Bisht also. Since he was on deputation, he left the organization. His submission was taken only to the extent of indentifying the signature of Shri Balachandran. The Applicant refused to avail the opportunity granted to him by this Tribunal for cross-examination of Shri Mukesh Chaturvedi in the Inquiry raising the issue of non-payment of Subsistence Allowance. He has also challenged the validity of this Tribunals order dated 22.0408 and absented himself during the inquiry proceedings after appearing only once on 05.09.08. The Inquiry Officer, vide his report dated 17/08/09, has also reported that the Applicant appeared only once as stated above and failed to appear thereafter on subsequent hearings dated 22.09.08, 10.10.08, 31.10.08, 14.11.08, 05.12.08, 24.12.08 and 16.01.09. The Inquiry Officer sent summons to the Charged Official along with a copy of proceeding on every hearing, which were duly acknowledged by him, but still failed to give his appearance on every hearing. The applicant, instead of attending the hearing, was harping upon the issue of payment of Subsistence Allowance to him and never co-operated in the enquiry. Consequently, the Inquiry Officer upheld his previous Inquiry Report. Considering the aforesaid report and the gravity of fraudulent nature of the offence committed and the level of involvement of the Applicant therein, the Disciplinary Authority, vide order No. Admn.-I/Vig./VII/(142)/2100 dated 22.12.2009, again imposed upon him the penalty of dismissal from service which shall ordinarily be a disqualification for future employment under the Central Board of Trustees, EPFO.
19. We have heard the learned counsel for the Applicant Shri Ajesh Luthra and the learned counsel for the Respondents Shri Sat Pal Singh. The Apex Court in the case of State of Punjab Vs. V.K. Khanna 2000 (5) SLR 734 held that fairness is synonymous to reasonableness. Again in the case of Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others 2003 (2) SCC 111, the Apex Court held that where a statutory authority is required to do something in a particular manner, the same must be done in that manner only. The State and other authorities, while acting under the statute, are the creatures of the statute and they must act within the four corners of the statute. It is well settled law that the scope of judicial review of the orders of authorities in the enquiry proceedings is very limited. But whatever decision the statutory authorities would take in the process shall be in conformity with the principles of natural justice so that the delinquent official receives fair treatment at their hands. Otherwise the procedural errors leading to injustice and violation of natural justice will have to be set right.
20. In our considered view, the conduct of the Enquiry Officer and the Disciplinary Authority in this case were not befitting of the roles assigned to them as statutory authorities. The Enquiry Officer failed to observe the most important facet of impartiality in conducting the departmental enquiry ignoring the fact that he was performing a quasi judicial function to find out the truth in the charge. This Tribunal, vide its order dated 22.04.2008, directed the Respondents to put the Applicant under suspension for the purpose of completing the enquiry from the stage of examining Shri Mukesh Chaturvedi. Further, the Tribunal gave liberty to the respondents to proceed against him from the stage of examining the said Sh. Mukesh Chaturvedi in the enquiry in his presence by giving him opportunity to cross-examine him and then to pass fresh orders, after complying with the procedure as laid down in the rules. The Respondents, of course, reinstated him in service vide dated 16.06.2008 but failed to comply with the rules governing the suspension of a Government employee. The Madras High Court in its judgment in the case of Km. G.Gabrial vs. State of Madras, 1959 (II) M.L.J. 13 held that the person proceeded against must be given a fair and reasonable opportunity to defend his case. The relevant part of the said judgment is as under:
(i) All enquiries, judicial, departmental or other, into the conduct of the individuals must conform to certain standards. One is that the person proceeded against must be given a fair and reasonable opportunity to defend himself. Another is that the person charged with he duty of the holding the enquiry must discharge that duty without bias and certainly without vindictiveness. He must conduct himself objectively and dispassionately not merely during the procedural stages of the enquiry, but also dealing with the evidence and material on record when drawing up the final order. A further requirement is that the conclusions must be rested on the evidence and not on matters outside the record. And, when it is said that the conclusions must be rested on the evidence, it goes without saying that it must not be based on misreading of the evidence. These requirements are basic and cannot be whittled down, whatever be the nature of the enquiry, whether it is judicial, departmental or other.
The Apex Court also in its judgment in the case of Ghansyam Das Srivastava (supra), as rightly relied upon by the Applicant, held that the enquiry proceedings conducted without paying the subsistence allowance is in violation of the provisions of Art. 311 (2) of the Constitution as it amounts denial of reasonable opportunity to the delinquent to defend himself in the enquiry proceedings. However, in spite of not paying the subsistence allowance, the Applicant attended the hearing before the Enquiry Officer on 05.09.2008. It is noted that he was dismissed from service on 29.03.2004 and he is penniless from that date. He has been requesting the Enquiry Officer to arrange for the payment of his subsistence allowance before any further enquiry was held. The Enquiry Officer did not ensure that the Applicant was paid the subsistence allowance. Therefore, it cannot be held that he had no justification in not participating in the enquiry proceedings held on subsequent days. The Enquiry Officer has also failed to ensure the presence of Shri Mukesh Chaturvedi on any of the date on which enquiry was fixed. On the other hand, on 10.10.2008, when the Presenting Officer stated before the Enquiry Officer that as the Applicant was not cooperating in the enquiry and the prosecution witness need not be summoned till he appeared, the Enquiry Officer readily agreed to the said submission in an arbitrary and illegal manner and did not call the prosecution witness again. Enquiry Officer himself in his report observed that the charged official was harping upon the issue of payment of subsistence allowance to him. Further, it has been stated in the report that the Charged Official did not avail the opportunity of cross examining the departmental witness Shri Mukesh Chaturvedi the then Dy. Director (Vigilance). When the Enquiry Officer did not ensure that the prosecution witness was present even once, where was the question of cross examining him. In Capt. M. Paul Anthonys case (supra) also, the Apex Court held that non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee and it can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death. Again, the Apex Court in the said judgment held that the Fundamental Rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance has been made in the Service Rules only ensures non-violation of the right to life of the employee.
21. Further, in spite of the fact that during the pendency of the proceedings before the Enquiry Officer, the Applicant came before this Tribunal complaining that the Respondents were not paying him the subsistence allowance and this Tribunal directed them to pay the uptodate subsistence allowance, they blatantly violated that order by not paying subsistence allowance, at least, during the enquiry proceedings. The Enquiry Officer was quite whimsical and biased in his approach and abruptly closed the enquiry proceedings without ensuring that the Applicant was paid the subsistence allowance and the prosecution witness Shri Mukesh Chaturvedi was brought for examination/cross-examination. Admittedly, the subsistence allowance was paid to the Applicant after the Enquiry Officer closed the proceedings. As held by the Punjab and Haryana High Court in the case of Jyoti Parshad vs. Supdt. Of Police AIR 1958 Punjab 327, the rules of natural justice has to be followed in departmental proceedings and delinquent cannot be asked to defend himself before a person who is already biased against him. The relevant part of the said judgment is as under:
It was observed that although proceedings of a departmental enquiry are not strictly speaking judicial proceedings, the rules of natural justice do apply to these proceedings with as much force as they apply to all judicial proceedings and that therefore if a delinquent is asked to defend himself before a person who is already biased against him or who has already prejudiced the issues and who is no way amenable to consider the matter objectively and dispassionately, the court will conclude that a reasonable or real opportunity to defend has not been given.
22. The Disciplinary Authority and Appellate Authority were also not justified in passing their orders. Despite the fact that the Applicant had informed the Enquiry Officer that he was not in a position to attend the enquiry proceedings without getting the subsistence allowance, the Disciplinary Authority in its order, arbitrarily held that the Applicant failed to furnish any valid reasons as to why he did not appear before the Inquiry Officer on the dates mentioned in the report. The Appellate Authority has also, without any application of mind held that the findings of the Enquiry Officer were based upon the proper analysis of the evidence adduced during the proceedings and the pleadings of the department as well as that of the Appellant when actually there was no enquiry at all. The Appellate Authority also repeated the Disciplinary Authoritys findings that the appellant has not given any valid reason as to why he could attend the hearings and ultimately failed to cross-examine the witness Shri Mukesh Chaturvedi despite 07 adjournments/hearings.
23. We, in the above facts and circumstances of the case, allow this OA and quash and set aside the Enquiry Report dated 19.04.2002, the Disciplinary Authoritys order dated 22/29.12.2009 and the Appellate Authoritys order dated 22.06.2012. As the disciplinary case was instituted way back on 26.06.2000 and the Applicant has been undergoing the proceedings for the last more than 15 years, it will be a travesity of justice if the case is again remanded to the Disciplinary Authority for a third time. Moreover, the very purpose of remitting the case of the Applicant to the Respondents vide this Tribunals order dated 22.04.2008 was to proceed from the stage of examining Sh. Mukesh Chaturvedi in the enquiry in his presence by giving him opportunity to cross-examine the said witness and then to pass fresh orders, after complying with the procedure as laid down in the rules. But said purpose is defeated as Shri Mukesh Chaturvedi is not available for cross-examination. We, therefore, direct the Respondents to reinstate the Applicant in service from the date of his dismissal and to pay the uptodate subsistence allowance with periodical annual increments from 29.03.2004 till his date of reinstatement and other consequential benefits admissible under the rules. The Respondents shall also refund the amount, if any recovered from the Applicant in terms of the aforesaid order dated 25.09.2002. As regards the intervening period from 29.03.2004 till the date of reinstatement, the Competent Authority shall treat it appropriately, as per rules. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. No order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh