Central Administrative Tribunal - Ernakulam
N. Satheesan vs The Union Of India on 18 December, 2015
Author: P. Gopinath
Bench: P. Gopinath
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 815 of 2013
Friday this the 18th day of December, 2015
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
N. Satheesan, aged 61 years
S/o P. Narayanan, Retired Assistant Provident Fund Commissioner,
Residing at CRA 3A, Sree Chithira Lane,
Vanchiyoor, Thiruvananthapuram.
. . . . . Applicant
[By Advocate Dr. KP Satheesan (Senior) alongwith Advocate
Mr.P.Mohandas)
Versus
1. The Union of India, represented by the Secretary, Ministry of Labour &
Employment, Government of India, Sharam Shakti Bhawan, Rafi Marg,
New Delhi-110 001.
2. The Chairman, Central Board of Trustees, Employees Provident Fund
Organization, Bhavishya Nidhi Bhawan, Bhikaji Cama Place, New Delhi-
110 066.
3. The Central Provident Fund Commissioner, Employees Provident Fund
Organization, Head Office, 14, Bhikaji Cama Place, New Delhi-110 066.
4. The Regional Provident Fund Commissioner-1, Employees Provident
Fund Organization, Regional Office, Bhavishya Nidhi Bhawan, Pattom,
Thiruvananthapuram-695004.
. . . . Respondents
(By Advocate Mr. N.N.Sugunapalan, Senior Counsel along with
Advocate Mr.S. Sujin)
This application having been finally heard on 03.12.2015 &
14.12.2015, the Tribunal on 18.12.2015 delivered the following:
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member This application has been filed challenging Annexure A11 order passed by the disciplinary authority as per which a penalty was imposed on the applicant imposing 10% cut in pension for a period of 2 years. Annexure A12 is the revised Pension Payment Order issued pursuant to Annexure A.11. The applicant seeks to set aside Annexures A11 and A12.
2. The case of the applicant is stated in brief as under:
While the applicant was working as Assistant Provident Fund Commissioner in Kerala Annexure A1 charge was issued to him alleging that he committed serious misconduct. It was alleged that he acted recklessly in discharge of his duties in a manner reflecting on his integrity;
that while determining the dues in respect of M/s Iyer and Mahesh, a firm of Architects ad approved valuers, disregarding the information on the enforcement file, he assessed the dues based on the false information supplied by the employer resulting in improper assessment of the dues and thus rendered undue favour to the said establishment. Annexure A2 reply was given by the applicant. Inquiry Officer was appointed. He conducted inquiry. Inquiry Report was accepted by the disciplinary authority. The inquiry report was furnished to the applicant to represent his case, whereupon he submitted his reply. The applicant contended that he was discharging a quasi judicial function and so the action taken against him is unsustainable. Rejecting that plea Annexure A11 order was passed. The applicant contends that since he was discharging a quasi judicial function, if any wrong was committed, it was amenable to be corrected in appeal and no disciplinary inquiry can be initiated against him.
3. Respondents filed reply statement contending as follows. An investigation was conducted by the Zonal Vigilance Director vide letter dated 22.7.2009, who submitted the report holding that the applicant has not examined the evidences produced though they were available at the time of 7A inquiry and consequently the date of coverage could not be determined correctly, which culminated in under assessment of Rs. 4458756.25. In the inquiry conducted, the two charges levelled against the applicant stood proved. After considering the objection raised by the applicant, the disciplinary authority accepted the inquiry report. The contention that the applicant was discharging quasi judicial function and so the disciplinary action cannot be taken against him was turned down. The procedure prescribed was followed in the conduct of the inquiry. The applicant is not entitled to get any relief as sought for.
4. Points for consideration are (i) whether the applicant is entitled to get any immunity against disciplinary action on the ground that he was discharging a quasi judicial function and (ii) whether the Annexure A.11 and consequential Annexure A12 order passed are liable to be interfered with.?
5. We have heard the learned Senior Counsel appearing for the applicant and the learned Senior Counsel for the respondents. We have also gone through the documents/records produced by the parties.
6. The two charges framed against the applicant are stated as under:
'Article I: That the said Shri N.Satheesan, while functioning as APFC at RO, Thiruvananthapuram committed serious misconduct in as much as he acted recklessly in discharge of his duties in a manner reflecting on his integrity in that while determining dues in respect of M/s Iyer & Mahesh - a firm of Architects & Approved Valuers' he disregarded the information in the Enforcement file No.ER/22502/Enf.1(3)/07 and assessed the dues based on the false information supplied by the employer resulting in improper assessment of dues and this rendered undue favour to the said establishment.
Article II: That the said Shri N.Satheesan while functioning APFC at RO,Thiruvananthapuram committed serious misconduct in as much as he acted recklessly in discharge of his duties in a manner reflecting on his integrity in that while determining dues in respect of M/s Iyer an Mahesh - a firm of Architects and Approved Valuers, he ignored the complaint/claim of one Shri G.Rajendran to adduce his evidence in respect of his complaint/claim in the 7A inquiry he held on 10.8.2007, in violation of Guidelines (iii) of Head Office Circular No.E.II/PQ Cell/8(28)86 dated 3.8.1995 to the determent of the employees of the said establishment and rendered undue favour to the employer of the establishment.
Shri N.Satheesan thus showed lack of devotion to duty and acted in a manner unbecoming of a Government servant and thus violated Rule 3(1)(i), 3(1)(ii) and Rule 3(1)(iii) of CCS (Conduct) Rules, 1964 read with regulation 27 of EPF (Staff and Condition of Service) Regulation, 1962.'
7. It is alleged by the respondents that the applicant while functioning as APFC at RO, Thiruvananthapuram committed serious misconduct in as much as he acted recklessly in discharge of his duties in a manner reflecting on his integrity in that while determining dues in respect of M/s Iyer & Mahesh - a firm of Architects & Approved Valuers' he disregarded the information in the Enforcement file No.ER/22502/Enf.1(3)/07 and assessed the dues based on the false information supplied by the employer resulting in improper assessment of dues and this rendered undue favour to the said establishment. There was a complaint dated 11..6. 2007 made by one G.Rajendran that the establishment mentioned above did not comply with the EPF&MP Act, 1952 since its inception in 1976. One Enforcement officer inspected the establishment and the Enforcement Officer had submitted a coverage proposal dated 25.6.2007 and recommended coverage of said establishment under Section 1(3)(b) of the EPF Act w.e.f. 10.3.2006. On 29.6.2007 the applicant had approved the E.Os said coverage proposal and issued coverage notice dated 29.6.2007 to the employer. It is also stated that the applicant had initiated inquiry on 29.6.2007 under Section 7A(1) against the establishment; namely, M/s Iyer and Mahesh for finalizing the date of applicability and to assess the dues. The allegation is that the applicant calculated the dues for the period from March 1997 to July 2007 at Rs. 1,33,543.85 disregarding the information on the enforcement file No.KR/22502/Enf.I(3)/07. Therefore, according to the respondents applicant's assessment of dues was merely on the basis of the information supplied by the employer and ignoring the information available in the file. The deliberate omission on the part of the applicant caused under assessment resulting in huge loss, the respondents contend It is also alleged that while assessing the dues under Rule 7A inquiry, applicant did not consider the information/details furnished by Shri Rajendran (the complainant) which were available in the file but simply followed the wage register produced by the employer. This, according to respondents, was done in order to unduly favour the employer.
8. Annexure A6 is the inquiry report submitted by the Inquiry Officer. It is actually not necessary to delve deep into the factual foundation of the charges levelled against the applicant or the correctness of the report submitted by the inquiry officer. But in view of the plea raised by the applicant that while conducting Section 7A inquiry he was discharging the function as a quasi judicial authority and so it is not amenable to disciplinary action some of the findings entered in Annexure A6 are also to be mentioned here to hold that the plea of protection raised by the applicant is not available.
9. In para 12 of Annexure A6 inquiry report details were given as to the information available on the Enforcement file No.KR/22502- Enf.1(3)/07; particulars of six informations have been specifically mentioned therein It has been mentioned in para 13 of Annexure.A6 that while assessing in the 7A inquiry the applicant did not rely on the information mentioned in para 12 of that report but relied upon the wage register of the employer produced. The details of the register produced are seen mentioned in para 13. Based on the files available made at the time of inquiry and mentioned in para 12 and what was relied upon by the applicant the variations which could be found are seen tabulated in para 14 of Annexure A6 which are shown below:
2000-01 1244581 1232432 12129 2001-02 1346927 1232127 116800 2002-03 1460264 1337564 12270 2003-04 1628067 1331392 296675 2004-05 2392153 2170653 221510 2005-06 2164110 2058260 105850
Thus the inquiry officer found that the applicant during the 7A inquiry, 'without causing comparison with the P&L account simply accepted the wage register the employer produced though there was information from Sri G.Rajendran in the complaint dated 6.7.2007 that the employer had furnished false information to the office and the applicant was aware of this complainant's letter. Several instances were mentioned in Annexure A6 as to total non-consideration or total discard of the documents available during 7A inquiry. It is not a case where the evidence produced by the complainant and the files mentioned earlier were considered by the applicant but happened to pass a wrong order. Incorrectness in the decision making process is one thing, but deliberate non-consideration or total disregard made by him to the relevant documents and statements and informations is quite another. The latter would certainly smack of undue favouritism which would reflect on the integrity of the officer. The inquiry officer held that the applicant intentionally ignored the facts available on the enforcement file and without causing verification of the same simply relied upon the register furnished by the employer (The register so produced by the employer, according to the complainant was not genuine; the reason whereof are also seen mentioned in para 16 of Annexure A6.
10. It is also important that subsequently a Rule 7C proceedings was held and order was issued on 15.12 .2008 fixing Rs. 45,92,300 for the period from May 95 to July 2007. Therefore according to the respondents it is crystal clear that applicant ignored all material documents and information available in the file but simply proceeded to accept the register produced by the employer and thereby variation to the tune of Rs. 45, 92,300 did occur. It is not something which can be simply ignored, saying that if at all it is only an incorrect decision and by raising the plea that such mistakes do occur while an officer is discharging a quasi judicial function and so it is not amenable to be proceeded under CCS (CCA) Rules. That plea has to be spurned down in the light of what have been stated above. Therefore, according to the respondents the finding entered by the applicant (in 7A inquiry) shows lack of integrity, lack of devotion to duty and he acted in a reckless manner reflecting on his integrity. That while determining the dues in respect of the firm, M/s Iyer and Mahesh, he violated Rule 3(1)(i), 3(1)(ii) and Rule 3(1)(iii) of CCS (Conduct) Rules, 1964 read with regulation 27 of EPF (Staff and Condition of Service) Regulation, 1962 stood proved to the hilt.
11. It is also alleged that while conducting inquiry the applicant committed serious misconduct in as much as he acted recklessly in discharge of his duties which also would reflect on his integrity. It is contended that while determining the dues in respect of M/s Iyer and Mahesh, the applicant ignored the complaint given by Shri G.Rajendran. The complainant G.Rajendran was not given an opportunity to adduce evidence in support of the complaint made by him when 7A inquiry was conducted. It is inconceivable how the applicant could omit to examine Shri G.Rajendran. It is not a case where Shri Rajendran, the complainant did not turn up to give evidence in support of his complaint. That serious lapse also is not something which can be totally ignored while assessing, his total dereliction of duty or culpable negligence while the applicant was discharging his duty while conducting 7A inquiry. The applicant failed to record the information by examining Shri Rajendran as mentioned in Head office circular dated 3.8.1995 mentioned in para 20 of Annexure A6. This according to the respondents was done to the detriment of the employees of the establishment and thus applicant rendered undue favour to the employer. Details have been mentioned in para 21 and 22 of the report as to how the applicant ignored the complaint and other evidence available on record. There is a detailed discussion of these aspects in para 24 and 26 of Annexure A6 as well. Similar detailed discussion regrading all those aspects are stated in the succeeding paragraphs also. We have gone through Annexure A6 only to find whether it is a case where the applicant committed only some mistake or error in 7A inquiry or whether the applicant totally ignored the records available in the file and deliberately failed to record the statement of complainant Shri G.Rajendran. We have absolutely no hesitation to hold that it is not a case the applicant could contend that there was no extraneous considerations, deliberate or malafide act on his part. In Annexure A6 there are details of ever so many acts or deliberate acts on the part of the applicant which would justify the conclusion that the applicant was swayed by extraneous considerations and he unduly favoured the employer which would depict the malafides in the decision rendered by the applicant as a quasi judicial authority while dealing with 7A inquiry/proceedings under the EPF Act. Therefore, the decision of the Hon'ble Supreme Court in Zunjarrao Bhikaji Nagarkar Vs. Union of India and others - (1999) 7 SCC 409 relied upon by the applicant is not applicable to the facts of this case.
12. It is submitted by the learned counsel for the respondents that after the inquiry report was received, it was submitted before the disciplinary authority for his reply and thereafter it was submitted before the central government being the competent authority in respect of the retired officials of the EPFO for taking an independent view on the report. It is further pointed out that after the view was taken, the case had to be referred to the Central Vigilance Commission (CVC) for its second stage advice and after receipt of the second stage advice from CVC along with the view of the competent authority on the proposed penalty, it was forwarded to the charged officer to enable him to make representations, if any, within 15 days time from the date of receipt of the communication. Undoubtedly it was forwarded to the applicant and pursuant thereto the applicant submitted his representation.
13. It is pointed out that the Central Government has imposed a penalty of 10% cut in pension for a period of two years. According to them the maximum leniency was shown to the applicant though the charge levelled against him was very serious. The contention raised by the applicant is that since 7A proceedings 'are to be completed within the time stipulated, it had to be hurriedly completed by him and so the complainant could not be asked to give evidence in the matter. But the respondents would submit that such guidelines do not mean that proceedings can be hurriedly completed without following the procedure and at any rate without giving an opportunity to the complainant to adduce evidence. The reason for non- examination of the complainant stated by the applicant is only a ruse subsequently invented by him to wriggle out of the situation, the respondents contend.
14. Learned counsel for the respondents relied upon the decsiion of the Hon'ble Supreme Court in Union of India and others Vs. K.K.Dhawan - AIR 1993 SC 1478 where it was held that b� an argument that no disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or a quasi-judicial proceedings is not correct.'. The Hon'ble Supreme Court has enumerated the instances where disciplinary action can betaken, which are as follows:
'(i) Where the Officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty ;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party,
(vi) if he had been actuated by corrupt motive however, small the bribe may be.' 'Though the bribe may be small, yet the fault is great - Lord Coke said long ago.
Therefore, according to the learned counsel for the respondents, the applicant is not entitled to claim any immunity to cover up the gross irregularities or malafide actions taken by him while he was discharging the quasi judicial function. Though ti was vaguely contended by the learned counsel of the applicant that there was violation of procedure prescribed, it could not be highlighted, what actually was the alleged complaint of the applicant or what was the prejudice caused to him due to the alleged violation of any of the procedure prescribed. Though it was stated that the copy of Inquiry Report was not furnished to the applicant, the applicant himself stated that the copy of the inquiry report was received to which a proper representation/reply was given by him. So, that argument cannot be sustained. No infraction of any of the rules or violation of natural justice could be brought out so as to hold that the action of the disciplinary authority is vitiated. That must precisely be the reason why the whole argument was focused on the so called 'immunity' stated to be available to the officer as he was discharging a quasi judicial function. For the reasons stated earlier we are not inclined to accept the contention that he is entitled to the immunity or protection as contended by him.
15. The contention that the inquiry report is biased is also found to be devoid of any merit. There was no case at any point of time that the officer who was appointed as the inquiry officer and who conducted the inquiry had any bias or prejudice towards the applicant. Only because the report happened to be against him he cannot contend that the report is biased.
16. It was held by the Hon'ble Supreme Court in Zunjarrao Bhikaji Nagarkar Vs. Union of India and others - (1999) 7 SCC 409 to maintain any charge sheet against any quasi judicial authority,something more; that is, extraneous consideration, deliberate act or malafide has to be alleged and proved. As delineated earlier, here, it was not a mere mistake or omission but a deliberate non- consideration of the available records which could not have been lost sight of at all. It was held by the Supreme Court in the very same decision:
'When we talk of negligence in a quasi judicial adjudication, it is not negligence perceived as carelessness inadvertence or omission but as culpable negligence. This is how this Court in State of Punjab Vs. Ram Singh, Ex Constable, 1992 (4) SCC 54: AIR 1992 SC 2188: 1992 AIR SCW 2595 interpreted 'misconduct' not coming within the purview of mere error in judgment, carelessness or negligence in performance of the duty.' To sum up, it is not a case where there was only mere error in judgment, carelessness or negligence but a deliberate act or a culpable negligence which cannot be ignored.
17. The learned counsel has also relied upon the decision of the Supreme Court in Union of India and others Vs. K.K.Dhawan - AIR 1993 SC 1478 where the allegation was concerning undue favour upon the assessees. Similar was the case in Union of India and others Vs. Upendra Singh - (1994) 3 SCC 357. There also it was a case where the officer gave illegal and improper direction to the assessing officer in order to unduly favour the assessees. The learned counsel for respondents would also rely upon the decision of the Hon'ble Supreme Court in M.S.Bindra Vs. Union of India and others - AIR 1998 SC 3058 where the appellant therein was compulsorily retired, in which case the Apex Court held that 'judicial scrutiny of an order imposing premature compulsory retirement is permissible if the order is arbitrary or malafide or based on no evidence.' In Government of Tamilnadu Vs. K.N. Ramamurthy - AIR 1997 SC 3571 it was certainly a case of culpable negligence that was dealt with. In that case one of the charges was that the officer failed to safeguard the government revenue .
18. Going by the decisions cited above, it is clear that if the charge against the officer is that he had acted deliberately in defiance of law or was guilty of contumacious or dishonest act or acted in conscious disregard of his obligation, then certainly claim for protection raised by the officer cannot be sustained. The various instances referred in Annexure A6 report would negative the plea raised by the applicant that he acted bonafide or that at any rate it was only an incorrect decision which cannot be the subject matter for a disciplinary inquiry. The argument vehemently advanced by the learned senior counsel for the applicant in that line is found unacceptable. As observed earlier no violation of procedure prescribed under Rule 14 of CCS (CCA) Rules or violation of natural justice could be pointed out or established nor could any plea of prejudice be successfully advanced. We find no legal infirmity in Annxeure A11 order passed by the disciplinary authority. Since the punishment imposed is only of 10% cut in pension for a period of 2 years only we find that the punishment imposed is also not shockingly disproportionate to the charges proved against the applicant. So much so we find no merit in the O.A. It is hence dismissed. No order as to costs.
(P.Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member kspps'