Central Administrative Tribunal - Delhi
Abhay Kumar Mandal vs Employees Provident Fund Organisation on 13 July, 2023
1
OA No.2069/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.2069/2020
Reserved on: 03.07.2023
Pronounced on:13.07.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Abhay Kumar Mandal, 51, A
Regional Provident Fund Commissioner-1
Employees' Provident Fund Organization (EPFO)
Head Office, 15 Bhikaji Cama Place,
New Delhi-110066. ...Applicant
(By Advocate : Shri M.K.Bhardwaj)
Versus
1. Ministry of Labour and Employment
Through Under Secretary,
Shram Shakti Bhavan,
New Delhi-110001. ...Respondent No.1
2. Chairman, Central Board of Trustees (CBT), EPFO
Shram Shakti Bhavan,
New Delhi-110001. ...Respondent No.2
3. Central Provident Fund Commissioner, (CPFC),
Employees' Provident Fund Organization (EPFO)
Head Office, 15 Bhikaji Cama Place,
New Delhi-110066. ...Respondent No.3.
(By Advocates: Shri S.M.Zulfiqar Alam, Shri Brijesh Kr.Tamber,
Shri Yash Rustogi)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"(a) To call for the records relating to the issuance of the impugned Order dated 09.10.2020 passed by the Respondent No.1.2 OA No.2069/2020
(b) To set aside the impugned Order dated 09.10.2020 passed by the Respondent No.1 restraining the Departmental Inquiry against the Applicant; (Annexure A-1) and
(c) Any other order/direction that Hon'ble Tribunal deems appropriate in the case;"
2. The case, in brief, as mentioned in the OA is that the applicant joined Employees' Provident Fund Organization (EPFO) as Assistant PF Commissioner (Direct Recruit) through UPSC Examination in January 1999, as his first posting at Sub Regional Office (SRO), Nasik where he
-ontinued till March 2002. During 2000-2001, an internal Audit Party visited SRO Nasik for special auditing and the team listed out 15 cases of pension settlement which were processed with tampering/scoring of age/date of birth, purportedly to provide extra benefits to some members of the pension scheme of EPFO. But one such case wherein Input Data Sheet prepared for settlement of pension was finally approved by the applicant, after processing by officials at three stages, and the applicant was not even charged or proceeded against by the Audit Team, was re-opened against the applicant almost after more than 12 years, in the years 2013-2014 with recommendation of 'warning memo' for 'minor penalty' for supervisory failure only. The case was processed by Vigilance Wing for 'minor penalty' instead of 'warning memo' and the same was forwarded to CVC for 1st stage advice which was converted to major penalty by CVC. The applicant wrote to the then CPFC about injustice meted out to him with sudden re-opening of such an old case after gap of more than 12 years even when the Audit Report did not find any fault with him in the said case, but the applicant was issued the charge memo dated 09.11.2015 by 3 OA No.2069/2020 the then CPFC in the name of Chairman, CBT, EPF with the following articles of charge:
"Article I That Shri A. K. Mandal, RPFC-II while working as APFC at SRO, Nasik during the period from 1999 to 2002 approved the Input Data Sheet for settlement of pension claim of Shri Munir G. Pathan, P.F. A/c No. MH/17230/262, which was based on tampered documents in a grossly negligent manner resulting in wrong pension payment to claimant.
By the aforesaid acts of omission and commission, Shri A.K. Mandal, the then APFC (now RPFC-II) failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of an employee of EPFO and thereby violated rules 3 (1)
(i), 3 (1)(ii). 3(1)(iii) of CCS (Conduct) Rules, 1964 which are applicable to him mutatis mutandis by virtue of Regulation 27 EPF (Staff & Conditions of Service) Regulations 1962 read with Regulation 18 and 22 of EPF (Officer and Employees' Condition of Service) Regulation, 2008 as amended from time to time.
Article II That Shri A. K. Mandal, RPFC-II while working as APFC at SRO, Nasik during the period from 1999 to 2002 approved the Input Data Sheet for settlement of pension claim cases of 10 members without ensuring the correct age of members which was in gross violation of para 9.5.1 and 9.5.3 of Manual of Account Procedure Part-Ill and thereby failed to follow uniform procedure while approving the Input Data Sheet, the basic source for issuance of Pension Payment Order.
By the aforesaid acts of omission and commission, Shri A.K. Mandal, the then APFC (now RPFC-II) failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of an employee of EPFO and thereby violated rules 3 (1)
(i), 3 (1)(ii), 3(1)(iii) of CCS (Conduct) Rules, 1964 which are applicable to him mutatis mutandis by virtue of Regulation 27 EPF (Staff & Conditions of Service) Regulations 1962 read with Regulation 18 and 22 of EPF (Officer and Employees' Condition of Service) Regulation, 2008 as amended from time to time."
4OA No.2069/2020
3. The applicant submitted his written statement of defene on 04.12.2015 denying charges and sought personal hearing from the disciplinary authority, i.e. Minister of State Labour & Employment, Mol&EGoI as Chairman, CBT, EPFO. The disciplinary authority after affording an opportunity of personal hearing to the applicant and having a careful perusal of records decided to drop the charges against the applicant and issued a warning to him. Thereafter the matter was referred to CVC seeking its IInd stage advice. The CVC disagreed with the decision of the disciplinary authority for dropping the charges which was placed before the disciplinary authority. The disciplinary authority after considering the CVC advice and other relevant records decided that the charges leveled against the applicant be dropped and a warning of caution be issued, as decided earlier. Accordingly, an order dated 17.01.2017 (Annexure A-6) was issued in the name of the Chairman, CBT, EPF, the then Minister of State for Labour & Employment (IC), Govt. of India with a warning to the applicant to be more cautious in future. The said order also took cognizance of the fact that the case took place in the year 2000 and the charge memo was issued only in the year 2015 and due to the prolonged pending departmental proceedings, the applicant has already suffered a lot. But despite the aforesaid detailed and reasoned order, the impugned order dated 09.10.2020 has been passed by the Respondent No.1, i.e. the revisionary authority ordering to restart the departmental proceedings from the stage of departmental inquiry dropped against the applicant, Shri Abhay Kumar Mandal. In the said order, the instructions of CVC which appears to be the only ground to go for revision of the well 5 OA No.2069/2020 settled order of the disciplinary authority, after more than three years has also been mentioned.
4. In the OA, rejoinder and also during the hearing, it has been submitted that the applicant has been put to undue harassment as the disciplinary authority had dropped the proceedings and exonerated him from all the charges vide order dated 17.01.2017 and the CVC has no authority to act as an appellate authority over the order passed by the disciplinary authority. Reliance has been placed on setting aside the similar action of CVC by the Hon'ble Delhi High Court vide its judgment dated 04.12.2020 in W.P. (C) 3248/2020 & CM 11334/2020 (Dr.Rajesh S. Gokhale vs. Union of India & Ors.). In the cited case, vigilance clearance was denied on the ground that the disciplinary proceeding was still not completed wherein the High Court held that once the decision/order of the disciplinary authority is taken, published and notified or communicated, the authority becomes functus officio and the proceedings stand concluded and it cannot be said that the authority has not taken a final decision. Though the above cited judgment, the learned counsel drives home the general rule that the CVC Guidelines do not envisage a post-exoneration advice from the CVC. It is also argued that the action by the revisionary authority is in violation of Rule 25 of the Employees' Provident Fund Staff (Classification, Control & Appeal) Rules, 1971 which stipulates that the revisionary authority, i.e. Central Government or the Central Board CPFC can revive the order passed by the disciplinary authority only within six months of the date of the order proposed to be revised, whereas in the instant case more than three years have elapsed. 6 OA No.2069/2020
5. The learned counsel for the respondents does not dispute the fact that the disciplinary authority in its order dated 17.01.2017 had exonerated the applicant but he argues that a well considered decision was taken by the revisionary authority (Annexure A/1) as the CVC had sought the status of the case and when a copy of final order issued against the applicant was provided to the CVC, they after considering the case had advised to move for revision of the case on the ground that (i) before dropping a formal proceedings, no 2nd stage advice was sought; (ii) while dropping a formal proceedings initiated, no warning, a non-formal act, can be administered; and (iii) Clearly officer was favoured vis-à-vis others 5 officers. Therefore the revisionary authority considered the matter and was well within its competency to take a decision in the light of CVC advice, which was to restart the departmental proceedings. The main thrust of learned counsel for the respondents is also that the provision regarding the revision from the date of order proposed within six months, is meant for the appellant authority and no such limitation in the said rule is envisaged so far revisionary authority is concerned. Hence the contention of the learned counsel for the applicant regarding six month limitation is not valid.
6. Emphasis is also laid that the applicant failed to cause verification of the age of claimant while processing claim form for pension and he cannot escape from his responsibility for which others have been penalized. It is contended that Form 9 is a basic document maintained by EPFO which is the repository of key information on the members' age/date of birth of members, vital for determining the nature and quantum of benefits admissible under Employees Pension 7 OA No.2069/2020 Scheme and any wrong entry made therein is a serious mistake. The averment of the applicant that since the said Input Data Sheet had come to him after a three stage verification, his responsibility was to a lesser extent, is misconceived. It has also been stated that the genesis of the case was a complaint received through CBI and hence due seriousness was attached to it, including an independent investigation by vigilance, followed by a special audit by Audit Wing during which 15 cases, including the case involving the petitioner, came to light. All those involved in the cases have been penalized and the applicant cannot claim any exception.
7. Also the fact that the overpaid amount was recovered by the competent authority, in no way, means that there was no delinquency and as such it does not preclude the disciplinary action against those involved.
8. Learned counsel for the respondents also refutes the averment made in the OA that the matter was closed after the conduct of audit. It is submitted that the case was under active consideration after receipt of the complaint and was analyzed from various angles. All cases identified were settled across several years during the course of which the prescribed processes and procedures had also undergone some changes and hence each case had to be examined on its own merit independently. Further versions were also obtained from each of the officials which also took considerable time but the fact remains that the matter was never closed and was active since receipt of the complaint in 2001.
8OA No.2069/2020
9. Learned counsel for the respondents also states that while submitting the facts to the revisionary authority, the following proposals were placed for consideration and independent decisions:-
(a) To restart the departmental proceeding from the stage of departmental inquiry initiated against Sh.
A.K.Mandal, RPFC-II as already IO/PO were appointed in the case vide order dated 05.10.2016;
or
(b) To confirm the decision of the DA i.e. Chairman,
CBT's decision to drop the charges and issue a
warning vide order dated 17.01.2017, or
(c) Any other order as deemed fit
and the revisionary authority in consideration of the facts in their entirety accepted the proposal at (a). The said decision was in accordance with rules which provide that the revisionary authority, Central Government, may at any time, either on its own motion or otherwise review any order passed under these rules when any new material or evidence which could not be produced as was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come or has been brought to his notice. In conclusion, it is asserted that action of revisionary authority is without any prejudice to the applicant and there is no denial of natural justice in the instant case.
10. We have perused the pleadings on record and also heard Shri M.K.Bhardwaj, learned counsel for the applicant and Shri S.M.Zulfiqar Alam, Shri Brijesh Kr.Tamber and Shri Yash Rustogi, learned counsels for the respondents.
11. There is no dispute that revisionary authority is well within his powers to revise the orders of disciplinary authority and we do not think that this needs to be elaborated further. However, the crucial 9 OA No.2069/2020 question is whether a time-limit of six months is set for the revisionary authority, from the date of the proposed order of disciplinary authority to be revised. For the sake of clarity the relevant provision for revision, contained in Rule 25 of the Employees' Provident Fund Staff (Classification, Control & Appeal) Rules, 1971 is cited for ready reference:
Revision (1) Notwithstanding anything contained in these rules:-
(i) The Central Government or the Central Board CPFC -
(added) as the case may be or
(ii) the appellate authority, within six months of the date of the order proposed to be revised;
(emphasis added) From the above reading, it appears that the time-limit of six months for the order proposed to be revised is applicable both for the Central Government (revisionary authority) and appellate authority and thus it cannot be said that no time-limit has been set for the revisionary authority in the matter. We also placed reliance on the judgment of the Hon'ble Supreme Court in Union of India and Others vs. Vikrambhai Maganbhai Chaudhari (2011) 7 SCC 321, wherein the Hon'ble Supreme Court dealt with the provision of revision contained in Rule 29 of the CCS (CCA) Rules, 1965 as under:
"9. The relevant clauses of Rule 29 are as under:
29. Revision -(1) Notwithstanding anything contained in these Rules-
(i) the President, or
(ii) the Comptroller and Auditor-General, in the case of a government servant serving in the Indian Audit and Accounts Department, or
(iii) the Member (Personnel) Postal Services Board in the case of a government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the 10 OA No.2069/2020 case of government servant serving in or under the Telecommunications Board, or
(iv) the Head of a Department directly under the Central Government, in the case of a government servant serving in a department or office (not being the Secretariat of the Posts and Telegraphs Board), under the control of such head of a department, or
(v) the appellate authority, within six months of the date of order proposed to be revised, or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be specified in such general or special order, may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these Rules....
* * * (2) No proceeding for revision shall be commenced until after:
(i) the expiry of the period of limitation for an appeal, or
(i) the disposal of the appeal, where any such appeal has been preferred."
10. As rightly observed by the Tribunal, the above sub- rule (1) of Rule 29 indicates 6 categories of revisional authorities. If we go further it shows that while no period is mentioned in sub-clauses (i) to (iv), sub-clause (v) refers to a period of six months from the date of the order proposed to be revised. Since the order was passed by exercising power under sub-clause (vi), we have to see whether in the notification specifying an authority a time-limit has been mentioned or even in the absence of the same, the outer limit can be availed by exercising power under sub-clause (v). According to the learned ASG, there is no need to specify the period in the notification authorising the authority concerned to call for the record for any enquiry and revise any order made under the Rules. We are unable to accept the said claim for the following reasons.
**** * ***************************************
12. We have already pointed out that no period has been mentioned in the notification. The argument that even in the absence of a specific period in the notification in view of Clause (v), the other authority can also exercise such power, cannot be accepted. To put it clear, sub-clause (v) applies to the appellate authority and Clause (vi) to any other authority specified by the President by a general or special order for exercising power by the said authority 11 OA No.2069/2020 under sub-clause (vi). There must be a specified period and the power can be exercised only within the period so prescribed."
From the above, it is evident that a time-limit is to be specified within which such revisionary/appellate power is to be exercised though we are also of the view the provision contained in Rule 25 (i) and (ii) as explained above already set a time limit of six months for the same. Therefore we are unable to accept the argument that revisionary authority was within rules to start the revisionary procedure after a gap of more than three years.
12. We have also considered the other grounds. Since the decision of the revisionary authority to restart disciplinary proceeding was in the light of a communication from CVC and the learned counsels for the respondents have highlighted this point during the hearing, we have dealt with the issue as well. The impugned order was passed by the revisionary authority keeping in view the third communication from CVC after due consideration of first and second stage advice by the disciplinary authority. So far as the advice rendered by the CVC in their third communication is concerned, in our view, while taking the decision, the revisionary authority is not constrained to consider the advice of the CVC, more so when the second stage advice had already been duly considered by the disciplinary authority. In fact, the third letter contained the views of the CVC on the status of the case, as asked by them, in the context of disciplinary authority's decision sent to CVC.
13. The position viz CVC advice has been amply clarified by the Hon'ble Delhi High Court in Dr. Rajesh S. Gokhale vs. Union of India & Others [WP (C) No.3248/2020 & CM No.11334/2020 decided on 04.12.2020] wherein it was held as under:
"42. Therefore, the entire scheme of the CVC Manual when read holistically leads this Court to conclude that the CVC 12 OA No.2069/2020 advice, when applicable to a particular Organization/Department is required to be taken at two stages. First stage advice is taken prior to the issuance of chargesheet i.e. initiation of disciplinary proceedings. Second stage advice is taken before the Disciplinary Authority takes a final decision to exonerate or impose a penalty on the charged officer, based on the inquiry report. There is no provision in the Manual which permits taking second stage CVC advice after the final order of exoneration. The reasons are manifold. The purpose of second stage advice is to enable the Disciplinary Authority to take a decision on the quantum of penalty and to ensure that the action of the Disciplinary Authority is in line with the first stage advice of the CVC. Also, the advice being one in the context of quantum of penalty as well, cannot be sought or given once a person is exonerated and has no allegations or charge against him. Relevant in this regard would be to refer to the Circular No.014-VGL-061 dated 03 December, 2014 as under:-
"The Commission, at present, is being consulted at two stages in vigilance cases/disciplinary proceedings, i.e. first stage advice is obtained on the investigation reports, and second stage advice is obtained before a final decision is taken at the conclusion of the proceedings.
2. The Commission vide its Office Order No. 03/01/10 dated 28.01.2010 had earlier dispensed with the requirement of obtaining second stage advice in respect of officers not falling within the jurisdiction of the Commission in composite cases wherein, first stage advice had been tendered in respect of all categories of officers involved. Cases of such officers are presently required to be referred only if the disciplinary authority's (DA) opinion/views is at variance with the Commission's advice. Further, vide its Circular No.17/12/12 dated 07.12.2012, the Commission had dispensed with consultation at second stage on conclusion of disciplinary proceedings in respect of Group 'A' officers of Central Government, members of all India. Services and such categories of officers wherein the UPSC is required to be consulted as per extant rules.
3. The Commission on a further review of the consultation mechanism and to provide for speedy finalization of disciplinary proceedings, has now decided to dispense with the consultation for second stage advice of the commission in cases where the disciplinary authority (DA), on conclusion of disciplinary proceedings, proposes to impose a penalty 13 OA No.2069/2020 which is in line with the Commission's first stage advice in respect of officers falling within the jurisdiction of the Commission also. Such cases would henceforth be dealt at the level of the CVO and DA concerned in the Organisation/Department. However, the CVO should forward an action taken report alongwith a copy of IO's findings and the final order issued by DA in all such cases of officers for Commission's record. It is further clarified that all such cases where the disciplinary authority proposes to take any action which is at variance with the Commission's first stage advice would continue to be referred to the Commission for obtaining second stage advice."
14. In the instant case, two stage process as mandated by CVC was followed and since disciplinary authority's views where at variance with the CVC second stage advice, the disciplinary authority within its competency passed an order dealing comprehensively with the advice rendered and exonerated the applicant by passing a reasoned and speaking order. Therefore, any further advice/ communication by the CVC after conclusion of the case lacks force. In fact, the need for speaking and reasoned order by the disciplinary authority has been emphasized by the CVC themselves vide their Circular dated 19.05.2014 is as under:
"The Commission has observed that inspite of the above said instructions, the orders issued in disciplinary matters by the Disciplinary Authorities concerned are sometimes not in the form of a speaking and reasoned order indicating due application of mind The Commission would, therefore, again advice all administrative authorities to ensure that officials exercising disciplinary powers conferred under the applicable statutory rules/CDA Rules etc. governing the public servants concerned in the CPSUS/PSBs/Ministries/Departments/Organizations to issue the orders which are self-contained, speaking a reasoned indicating due application of mind by them especially when they differ with the advice/recommendations of CVO or Inquiry Officer or the Commission as the case may be giving cogent reasons thereof."
15. Therefore, one cannot find fault with the order of the disciplinary authority in this case which is a detailed one and has holistically considered the facts of the case, including second stage advice and given cogent 14 OA No.2069/2020 reasons for not agreeing to such advice tendered by the CVC. The relevant portion of order is cited to emphsise this as under:
"The CVC advice cannot be agreed to as all cases of similar nature cannot be the same. The facts and circumstances in each case has to be taken into consideration which will be different in each case. The first stage advice of CVC to place all the officers at the same level and second stage advice of CVC comparing the cases of other officers involved in different cases as same is not correct. All cases may relate to disbursement of pension, may involve many officers, may have resulted in loss of money but examination of each case may show different facts and circumstances. Even in these group of cases, it has been found that some cases has been processed earlier than the instructions/accounting manual issued and has been categorised as lack of instructions/knowledge to the officials involved and the charge has been dropped against those officials. In some, officer was involved in tampering, in some, the officers should have taken more care and in some, they did the both wrong. In this case also the officer has suffered enough due to ongoing case from 2001 onwards. After examination by ZVD(WZ) and Special Audit Team, the charges have been found of non-serious nature and recovery has already ordered by the organisation. When the detailed inquiry has already been taken place by going into record as well as the version of officers involved, inquiry by IO/PO is not going to serve any purpose more than further delaying the case to a conclusion. The Disciplinary Authority therefore came to the conclusion that the charges levelled against Sh. A.K. Mandal be dropped and issue a warning of caution as decided earlier."
From the above, it is apparent that the disciplinary authority has passed a reasoned and speaking order with attention to the facts and circumstances of the case. It has been clearly explained in the order as to why even the cases belonging to same group require a differential treatment, depending upon the facts and circumstances, as in some cases officers were involved in tampering while in some there was a supervisory failure wherein the concerned should have been more careful. We have also perused the impugned order of the revisionary authority. The relevant portion of the order reads as follows:
"WHEREAS, the CVC sought the status of the case and copy of fine orders issued against Shri Abhay Kumar Mandal. The requisite information was provided to CVC. The CVC after 15 OA No.2069/2020 considering the case has advised to move for revision of the case on the grounds that (i) before dropping the proceedings, no 2 stage advice was sought; (ii) while dropping a formal proceedings initiated, no warming, a non-formal act, can be administered; and (iii) clearly officer was favoured vis-à-vis other five Officers
4. AND WHEREAS, the matter was placed before the Revisionary Authority le Central Government under Rule 25 of EPF Staff (CCA) Rules, 1971 for consideration
5. NOW THEREFORE, the Revisionary Authority i.e. Central Government after considering the relevant facts and records of the case in exercise of the power conferred to it vide Rule 25 of EPF Staff (CCA) Rules, 1971, hereby orders to restart the departmental proceedings from the stage of departmental inquiry initiated against Shri Abitay Kumar Mandal, the then RPFC-II."
Reading of the impugned order indicates that the said order is non-speaking and does not provide any compelling reason or justification to restart the disciplinary proceedings. Apparently, it is done solely on the observation of the CVC made in third communication after the two stage process was over. Moreover, there is nothing to suggest that the said order was based on any new material or evidence which could not be produced as was not available at the time of passing the order under revision and which had the effect of changing nature of the case.
16. In the light of the above, we are of the considered view that the impugned order to restart the department proceedings from the stage of departmental inquiry initiated against the applicant is not sustainable in the eyes of law. Accordingly, the same is set aside and the OA is partially allowed. There shall be no order as to costs.
(Sanjeeva Kumar) (R.N.Singh) Member (A) Member(J) /kdr/