Central Administrative Tribunal - Delhi
M George vs Employees State Insurance Corporation ... on 8 July, 2024
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Item No.31
O.A. No.136/2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.136/2024
This the 8th day of July, 2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Sanjeeva Kumar, Member (A)
1. M. George
S/o Mr. MV Varghese
R/o 113B, Una Enclave, Mayur Vihar Phase-I
New Delhi-110 091
[email protected]
Presently working as:
Joint Director, ESIC Headquarters
Panchdeep Bhawan
Comrade Indrajeet Gupta Marg
New Delhi - 110 002. ... Applicant
(By Advocate :Mr. Prateek Dhanda )
VERSUS
1. Employees‟ State Insurance Corporation
Through its Director General
Panchdeep Bhawan
Comrade Indrajeet Gupta Marg
New Delhi - 110 002.
[email protected]
2. Chairman, Employees‟ State
Insurance Corporation
Panchdeep Bhawan
Comrade Indrajeet Gupta Marg
New Delhi - 110 002. ...Respondents
(By Advocate :Mr. Amit Chawla )
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Item No.31
O.A. No.136/2024
O R D E R (ORAL)
By Hon'ble Mr. Justice Ranjit More, Chairman:
Heard Mr. Dhanda, learned counsel for the applicant.
2. The present application has been filed seeking quashment of the order dated 09.01.2024 issued by the respondents where under the applicant has been imposed with the major penalty i.e. reduction by two stages in the time-scale of pay for two years.
3. The applicant was appointed as a Group „A‟ direct recruitment Deputy Director with respondent no1 organization on 08.04.2003. The applicant, thereafter, in the year 2015 was promoted to his present post i.e. Regional Director Grade „B‟/Joint Director w.e.f.15.07.2013. The applicant was served with Chargesheet dated 31.05.2018. It was, inter-alia, alleged that the applicant while working as Joint Director, Surat approved some inflated C-18 (adhoc) in respect of certain employers and also failed to mock test inspection of the records in respect of their employees. Further, he approved demand notices for the period beyond the 3 Item No.31 O.A. No.136/2024 period of coverage of the employers. For ready reference charges alleged against the applicant are reproduced:-
"ARTICLE OF CHARGE-I Shri M. George, Joint Director 1/c, Sub Regional Office, Marol while working as Joint Director 1/c of SRO, Surat committed misconduct in as much as that, he approved the C-18(Adhoc) in respect of M/s Shree Sai Shraddha, M/s Arsh Fashion, M/s Salasar, M/s Keshav, M/s Padmavati, M/s R.C. Gems, M/s Sudha Dyeing and M/s Ratnapriya in violation of S 11/12/1/2000-Ins. IV dated 01.05.2010, which resulted in highly inflated C-18 (Adhoc) in respect of these employers.
ARTICLE OF CHARGE-II Shri M. George, Joint Director 1/c, Sub Regional Office, Marol while working as Joint Director 1/c of SRO, Surat committed misconduct in as much as that, he approved issue of the C- 18(Adhoc) in respect of M/s Ratnapriya, M/s Ambaji Dyeing, M/s Jai Mata Di, M/s Salasar M/s Laxmi Narayan for a period, which also included the periods for which inspection of the record was already conducted by the SSO. He also failed to mark test inspection of the records in respect of these employer as per the provision contained in Revenue Manual para L.13.2 sub para 6 with the intention to inflate the C- 18(Adhoc) in respect of these employers.
ARTICLE OF CHARGE-III Shri M. George, Joint Director 1/c, Sub Regional Office, Marol while working as Joint Director 1/c of SRO, Surat committed misconduct in as much as that, he approved the C-18(Adhoc) in respect of M/s Geetanjali, M/s Rani Sati for a period beyond the date of coverage of the units under the ESIC Act and the final dates of coverage were yet to be finalized with the intention to inflate the claims."
4. The Inquiry Officer after concluding the inquiry submitted his report to the Disciplinary Authority on 24.03.2022 under which the applicant was exonerated from the charges imposed upon him. The respondent 4 Item No.31 O.A. No.136/2024 disciplinary authority, thereafter, issued the disagreement memorandum dated 08.09.2022 inviting applicant‟s representation. The applicant, thereafter, gave his representation on 27.09.2022. Thereafter, the disciplinary authority passed the impugned order. Subsequently, disciplinary authority sought second stage advice from the Central Vigilance Commission (CVC). The CVC rendered advice on 30.08.2023 and thereafter the impugned order was passed by the disciplinary authority.
5. The sole ground on which the impugned order is challenged by the applicant is that disagreement note dated 08.09.2022 clearly recorded the findings of the applicant‟s guilt.
6. Mr. Handa, learned counsel for the applicant relied upon the decision of the Hon‟ble Supreme Court in Yoginath D. Bagde vs. State of Maharashtra & Another, (1999) 7 SCC 739 in this regard and decision of the Division Bench of Hon‟ble Delhi High Court in Employees State Insurance Corporation through Director General &Ors. Vs. Ms. Saraswati Rawat. 5 Item No.31 O.A. No.136/2024
7. The learned counsel for the applicant also submitted the CVC under its advice dated 30.08.2023, to the disciplinary authority clearly stating that no action against the applicant should be taken. Coupled with the advice of the CVC, the learned counsel for the applicant submitted that this is not a case of financial loss to the respondents‟ corporation but on the contrary, the applicant augmented the revenue coffers of the ESIC and, therefore, the impugned order dated 09.01.2024 wherein a penalty of reduction by two stages in the time- scale of pay for two years, should be set aside.
8. Mr. Chawla, learned counsel for the respondents contested the application vehemently. He submitted that the applicant approved the C-18 (adhoc) in respect of the employers by violating the ESIC instructions S- 11/12/01/2000-Ins.IV dated 01.05.2000 which resulted in highly inflated C-18 (adhoc). Such highly inflated C-18 (Adhoc) sent a wrong message to the business community suggesting lack of due diligence and fairness in the Government‟s regulatory process and also maligns the image of the Government body.
6Item No.31 O.A. No.136/2024
9. Countering the arguments of the learned counsel for the applicant that since in the instant case, there was a difference of opinion, this should have been referred to DOP&T, the learned counsel submitted that DOP&T vide OM dated 02.09.2019 referring to their earlier OM dated 28.09.1978 have stipulated that DOP&T should be consulted if the Ministries/Departments decide to differ from or not to accept any recommendation of the CVC only in those cases which relate to Gazetted Officers or for whom the Appointing Authority is the President. However, in case of the applicant, the applicant is neither President appointee nor a gazetted officer. He further submitted that charges against Shri NK Tiwari were for different reasons and not connected to the charges against the applicant. Hence the two cannot be correlated.
10. We have considered the rival submissions by the respective counsels. We find merit in the application. For ready reference the disagreement note dated 08.09.2022 is reproduced below:-
"9. In view of the above, Article of charges I & II against C.O., as mentioned in the Charge Memorandum No.C- 14/13/14/17-Vig. dated 13.11.2017, stands that 7 Item No.31 O.A. No.136/2024 (1) Article of Charge-I PARTIALLY PROVED (2) Article of Charge II PROVED"
11. From perusal of the aforesaid disagreement note, it is evident that the respondents‟ disciplinary authority had not only made up its mind to hold the applicant guilty of charge no.1 & 2 but he also, in no certain terms, opined that the charge 1 levelled against the applicant is partially proved and charge 2 is proved. In the light of these conclusive findings of respondent/disciplinary authority, we find merit in the applicant‟s plea that such a disagreement note is unsustainable in law and, consequently the impugned penalty order is liable to be set aside. While issuing disagreement note, the disciplinary authority is expected to provide only the tentative reason why he proposes to differ with the view taken by the inquiry officer and take a final decision only after considering the stand/representation of the employee. In this regard, reference may be made to the observation of the Apex Court as contained in paragraph nos. 31 and 52 of its decision in Yoginath D. Bagde (supra):-
"31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are 8 Item No.31 O.A. No.136/2024 considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.
52. In the instant case, we have scrutinised the reasons of the Disciplinary Committee and have found that it had taken its final decision without giving an opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the Enquiry Officer. We have also found that the complainant's story with regard to the place at which the demand was allegedly made by the appellant was inconsistent. We have also noticed that the trap laid by the A.C.B., Nagpur against the appellant had failed and was held by the Enquiry Officer to be a farce and not having been laid with the permission of the Chief Justice. We have also noticed that there was absolute non-consideration of the statements of defence witnesses, namely, Dr.Naranje and Mr. Bapat, advocate, by the Disciplinary Committee. This 9 Item No.31 O.A. No.136/2024 factor in itself was sufficient to vitiate the findings recorded by that Committee contrary to the findings of the Enquiry Officer."
12. The Division Bench of the Delhi High Court in Ms. Saraswati Rawat (supra) in similar circumstances quashed and set aside the disagreement note and consequent penalty also. That apart, we must also make a reference to the advice rendered by CVC with regard to the applicant. CVC advice is reproduced below:-
"OFFICE MEMORANDUM Sub: Advice in respect of Sh. M. George, Joint Director, ESIC
- reg.
****** ESIC may please refer to their letter No. C- 14/13/17/2018-Vig/15 dated 07.02.2023 and C- 14/13/17/2018-Vig/34 dated 13.04.2023 on the above cited subject.
2. The case has been examined in the Commission. On examination, following observations have been made:
(i) It is observed that stand of the ESIC appears to full of contradictions such as on the one hand Shri N K Tiwari, Director has been penalized who had in his quasi judicial authority had reduced recovery amount from the establishments causing loss to the corporation and unlawful gain to the establishments, on the other hand, ESIC has been charging other three officials those who raised the claims/ recovery amount allegedly on the higher side.
(ii) In so for as case against Shri M. George, JD is concerned, it is observed that he had allegedly approved the inflated C-18/claims brought out before him by Dy. Director Shri Anil Ranga, Dy, Director. IA has held that Charges against Shri M George is 'Not Proved'. Whereas DA and CVO have tentatively 10 Item No.31 O.A. No.136/2024 recommended to impose major penalty on him which does not appear to be justifiable. It is also pertinent to mention that no mala-fide or vigilance angle is brought out by the ESIC on the part of Shri George except some procedural lapses in raising of claims. It may be noted that C-18 claims are appealable by the establishment before the Appellate Authority under Section 45 A and 45AA, if claims are on higher side or not justifiable.
3. In view of the above, Commission would advise the CVO, ESIC 'No Action' against Sh. M George, then Joint Director.
4. ESIC's files/documents are returned herewith.
13. Reading of the above advice, makes it clear that the stand of the respondents is full of contradictions. More so, the CVC found that there is no malafide and vigilance angle brought out by the respondents‟ corporation on the part of the applicant and there is no charge of financial loss to the corporation of the respondents. On the contrary the applicant increased the revenue coffers of the corporation. The other employee, namely, N.K. Tiwari, who is responsible for loss of revenue to the corporation was penalized by the corporation.
14. In these circumstances, coupled with the fact that inquiry was initiated long back in year 2018, we are not inclined to remand back the matter to the respondents. So far as, Mr. Chawla‟s arguments regarding difference of opinion between the appointing and disciplinary authority 11 Item No.31 O.A. No.136/2024 and the CVC is concerned, the applicant has not relied upon those circumstances. The applicant sought to quash the penalty order only on the ground that instead of giving tentative findings in his disagreement note, the disciplinary authority had already made up his mind before going through the reply/representation of the applicant. As far as Mr. Chawla‟s submission that highly inflated C-18 (adhoc) sent a wrong message to the business community suggesting lack of due diligence and fairness in the Government‟s regulatory process is concerned, we are not very much impressed in as much as we find that the person, who is responsible for causing loss of revenue to the corporation, has been penalized by the respondents. The respondents‟ corporation cannot take a contrary stand considering the facts in totality.
15. In light of above, we are of the opinion that the impugned disagreement note, which culminated into penalty order, cannot be sustained in the eyes of law and same is accordingly quashed and set aside. 12 Item No.31 O.A. No.136/2024
16. The applicant is entitled for consequential benefits arising from this order.
(Sanjeeva Kumar) (Justice Ranjit More) Member (A) Chairman /uma/