Central Administrative Tribunal - Chandigarh
Santosh Kumar vs Employees State Insurance Corporation on 24 February, 2020
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CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
O.A.NO.060/00175/2020 Decided on : 24.02.2020
HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J)
HON'BLE MS. NAINI JAYASEELAN, MEMBER (A)
Santosh Kumar (Ex. UDC) (ID-145470), aged about 35
years, son of Shri Yudubir Prasad, resident of Laxmi
Bawan, Behind Atal Baba, House Yogipur Road Hilsa, PO &
PS Hilsa, District Nalanda, Bihar-801302, Group C.
(BY : MR. GURMINDER SINGH, ADVOCATE FOR
MR. B.S. BHALLA, ADVOCATE)
Applicant
Versus
1. Union of India through its Secretary, Ministry of Labour
& Employment, Govt. of India, (Social Security
Division), Shram Shakti Bhawan, Rafi Marg, New
Delhi-110001.
2. Insurance Commissioner (P&A), Headquarters Office,
ESI Corporation, Panchdeep Bhawan, New Delhi-
110001.
3. The Additional Commissioner & regional Director
(VIG), ESI Corporation, Madhya Marg, Sector 19A,
Chandigarh.
Respondents
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ORDER
HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J)
1. This Original Application (O.A) has been filed by the applicant challenging the order dated 6.12.2018 (Annexure A-11) vide which penalty of removal from service has been imposed upon him and order dated 26.11.2019 (Annexure A-13) vide which his appeal has also been rejected by the appellate authority.
2. The facts which lead to filing of this Original Application are that the applicant, while working as UDC at Ludhiana, was issued a charge sheet dated 8.12.2017 (Annexure A-2) under regulation 14 and para 3 of the Third Schedule of ESIC (Staff and Conditions of Service) Regulations, 1959, with the allegations that he used impersonation in written examination held on 8.11.2009 at D.A.V. Senior Secondary School, Sector 8-C, Chandigarh, for the post of Lower Division Clerk in ESI Corpn. thus, he got the employment in the Corporation on the basis of a fraud and secondly, he gave false information in Attestation 3 Form, about his trial in Court of Additional Sessions judge-I, Hilsa, District Nalanda, Bihar in criminal case u/s 367/34 IPC registered against him vide FIR No. 274/05 dated 11.10.2015, at Chandi Police Station, District Nalanda, Bihar. The enquiry was conducted and report was submitted by the IO on 10.8.2018, holding that applicant is guilty of charge no. I and charge No.2 loses its significance in view of first charge having been proved. The applicant submitted a reply dated 30.8.2018 and ultimately penalty of removal from service was imposed upon him vide order dated 6.12.2018. The appeal dated 1.1.2019 filed by him was also rejected vide a detailed order dated 26.11.2019, hence the O.A.
3. During the course of arguments, learned counsel for the applicant submitted that the impugned orders are not sustainable as no action could be taken on anonymous / pseudonymous complaint as per CVC instructions dated 7.3.2016 and even if there was wrong information in attestation form, courts have ruled to take a lenient view. The non mention of criminal case in form was an inadvertent mistake on part of the applicant. If there are 4 two different FSL reports, then third view was warranted to reach to the truth of the matter. No irregularity or discrepancy has taken place in conduct of examination, as per evidence on record. No charge of impersonation is made out from the record of the case. The CFSL report is full of doubts and cannot be relied upon by the respondents. The impugned orders are based on conjectures and surmise and as such cannot be sustained in the eyes of law.
4. We have considered and submissions and gone through the record of the case.
5. A perusal of the enquiry report would show that the I.O. has conducted a proper enquiry providing applicant proper opportunity to defend himself. The I.O. has discussed documentary and oral evidence in detail including report of CFSL. A clear cut fining is there that the person who appeared in the examination held on 8.11.2009 and who signed and wrote the OM sheet was a different person from the person who applied for the post of LDC. The defence witnesses have also been considered by the 5 I.O. and after examination of written and oral evidence, the findings have been recorded against the applicant proving the charge No.1 fully against him. The 2nd charge was accepted by applicant and he had also tendered apology and as such IO recorded that this charge loses its sheen, when charge no.1 stands proved.
6. The applicant was given show cause notice to which he submitted a reply claiming that there are two divergent opinions of hand writing experts etc. and as such 3rd opinion as warranted and that he had made an inadvertent mistake for which he should not be punished harshly. Rejecting the pleas taken by applicant, the penalty of removal from service was imposed upon him by the D.A. Then applicant filed an appeal dated 1.1.2019, which was decided on 26.11.2019, rejecting the same. Perusal of the same shows that Authority has applied his mind to the various pleas of the applicant and rejected it point-wise and order is self-speaking.
7. The learned counsel for the applicant has not been able to point out any irregularity or illegality which may 6 convince us to even issue notice of motion to the respondents. The pleas basically hovered around the principle of strict rules of evidence, which are applicable in criminal cases and departmental cases are decided on the basis of preponderance of probability. The punishment imposed upon applicant is found to be in consonance with the charge levelled and proved against him. In Bank of India Vs. Degala Suryanarayana (1999) 5 SCC 762, it is held by the Apex Court that strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to 7 support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.
8. It is by now well settled law that it is for the disciplinary authorities to decide on the punishment and the courts or Tribunals should not interfere with the same unless it is found that the same pricks the conscience of a prudent man. In other words, there is no complete bar in interference by a court of law or Tribunal in quantum of penalty upon a delinquent employee and such interference is dependent upon case to case basis. It has been held that ordinarily the court or tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule has exception. If the penalty imposed is grossly disproportionate with the misconduct committed, then the court can interfere.
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9. A three bench judgment of the Hon'ble Supreme Court in B. C. CHATURVEDI VS. UNION OF INDIA (1995) 6 SCC 749 has held that even though the Court/Tribunal, while exercising the power of judicial review cannot normally substitute their own conclusion on penalty and impose some other penalty, if the punishment imposed by the disciplinary authorities shocks the conscience of the High Court or the Tribunal it would be appropriate to grant the relief either directing the disciplinary, or the appellate authority to reconsider the penalty. The present case does not fall in that exception, at all, from any angle.
10. It is well settled law that a Tribunal or court of law can interfere in disciplinary proceedings only on limited grounds. The Hon'ble Supreme Court has considered the issue of interference in disciplinary proceedings including penalty in a recent decision of S.R. Tewari Vs. Union of India & Another, 2013 (3) SCT 461 and placing reliance on the cases of B.C. Chaturvedi Vs. Union of India & Others, AIR 1996 SC 484; High Court of Judicature at Bombay through its Registrar v. Udaysingh S/o Ganpatrao Naik Nimbalkar & Ors, AIR 1997 SC 2286 9 and Government of Andhra Pradesh & ors Vs. Mohd. Nasrullah Khan, 2006 (1) SCT 588, it has been held that the Court must keep in mind that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. Thus, the court is devoid of the power to re-appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. The case in hand does not warrant any interference by us in the impugned orders, which are found to be speaking one and passed with due application of mind.
11. In the wake of aforesaid discussion, this O.A. is found to be devoid of any merit and is dismissed in limine accordingly.
(NAINI JAYASEELAN) (SANJEEV KAUSHIK) MEMBER (A) MEMBER (J) Place: Chandigarh Dated: 24.02.2020 HC*