Central Administrative Tribunal - Delhi
A. K. Sharma vs Employees Provident Fund Organisation on 21 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 3486/2010 with O.A. No.4212/2011 Reserved On:23.12.2013 Pronounced on:21.01.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. ASHOK KUMAR, MEMBER (A) OA No.3486/2010 A. K. Sharma Working as Regional Provident Fund Commissioner (II) Bhikaji Cama Palace, 4th Floor, New Delhi. ..Applicant. (By Advocate : Sh. M. K. Bhardwaj) Versus 1. Employees Provident Fund Organisation Through the Chairman, Central Board of Trustees, Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Palace, New Delhi-110066. 2. Central Provident Fund Commissioner, Ministry of Labour, Government of India, Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Palace, New Delhi-110066. ..Respondents. (By Advocate : Ms. Aparna Bhatt) OA 4212/2011 A. K. Sharma S/o B. D. Sharma, Regional PF Commissioner, Grade-II, R/o I-121, Sector Game-II, Greater Noida. ..Applicant ( By Shri M. K. Bhardwaj, Advocate ) Versus 1. Union of India through Chairman, Central Board of Trustees, Employees Provident Fund Organization, Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi. 2. Secretary, Ministry of Labour & Employment, Shram Shakti Bhawan, New Delhi. 3. Central Provident Fund Commissioner, Ministry of Labour, Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi. .Respondents ( By Advocate: Ms. Aparna Bhatt) ORDER
Honble Mr. G. George Paracken, Member (J) Both these Original Applications have been remanded by the Honble High Court of Delhi vide its order dated 26.07.2013.
OA No.3486/20102. This Original Application was disposed of by this Tribunal earlier vide common order dated 26.08.2011. The issue under consideration in it was whether prior approval of the Disciplinary Authority was obtained before issuing the charge sheet to the Applicant. Noticing that the said issue had already been considered and decided by the Honble High Court of Delhi in its judgment in W.P. (C ) No.10452/2009 Union of India Vs. B.V. Gopinath decided on 28.07.2009 this OA was allowed on 26.08.2011 finding that the charge sheet issued to the Applicant was without the approval of the competent Disciplinary Authority, namely, the Finance Minister and the Minister of Labour and Employment wherein it was held that the approval of the competent Disciplinary Authority was required to be taken before issuing a charge sheet to the Respondent. The relevant part of the said judgment is as under:-
A perusal of the aforesaid Rule 14(3) indicates that the disciplinary authority shall draw up or cause a charge sheet to be drawn up. In other words, the disciplinary authority may itself draw up a charge sheet or it may direct a subordinate to draw up a charge sheet.
Office Order No.205/2005 dated 19th July, 2005 issued by the Department of Revenue, Ministry of Finance, Government of India (a copy of which has been handed over to us in Court today) contains a table which states that in vigilance/disciplinary cases, approval for issuing a charge memo/sanction of prosecution has to be taken at the level of the Finance Minister. It is also mentioned that while approaching the disciplinary authority for approval of the charge memo, approval for taking ancillary action, that is, appointing an Inquiry Officer/Presenting Officer may also be taken. There is no dispute in so far as this case is concerned, that the disciplinary authority of the Respondent is the Honble Finance Minister. The question, therefore, is whether the approval of the disciplinary authority has been taken for issuance of a charge memo in terms of the Office Order dated 19th July, 2005. Learned counsel for the Respondent has drawn our attention to the office notings obtained by his client under the Right to Information Act, 2005. We have seen the noting dated 7th June, 205 which mentions that the approval of the Honble Finance Minister is solicited, inter alia, for initiating major penalty proceedings against the Respondent. On 5th July, 2005 the Honble Finance Minister approved the proposal. In other words, the Honble Finance Minister granted approval for initiating major penalty proceedings against the Respondent. Thereafter, a charge sheet was prepared as mentioned in the noting dated 26th August, 2005 and this was approved by several authorities in the office of the Petitioners but there is nothing to indicate that the file as ever put up before the disciplinary authority which in this case, as already noted above, is the Honble Finance Minister. Therefore, it is quite clear that the approval of the disciplinary authority for issuing the charge memo was never taken by the Petitioners only approval for initiating major penalty proceedings was taken. We have before us three situations:
(a) Approval for initiating major penalty proceedings taken from the disciplinary authority.
(b) Approval for issuing a charge sheet not taken from the disciplinary authority.
(c) Approval of the charge sheet not in issue before us.
This being the factual position, we do not find any error having been committed by the Tribunal in coming to the conclusion that the charge sheet was issued without jurisdiction since approval of the disciplinary authority for issuing it was not taken, as required.
Under the circumstances, we see no reason to interfere with the impugned order passed by the Tribunal. However, we may note that the Tribunal has given liberty to the Petitioners to take appropriate action against the Respondent in accordance with law. The liberty granted by the Tribunal is not being disturbed.
The writ petition is disposed of in terms of the above.
However, since the aforesaid judgment of the Delhi High Court in B.V. Gopinaths case (supra) was under challenge before the Honble Supreme Court of India, this Tribunal made its aforesaid order dated 26.08.201 subject to the final outcome of the SLP pending before the Honble Supreme Court of India. The operative part of the said order is as under:-
9. Considering the facts and circumstances of the cases and guided by the law laid by Honble High Court of Delhi in B. V. Gopinath and S. K. Srivastava case, we are of the firm opinion that the impugned orders in all the present Original Applications where the charge sheets were issued against the applicants without getting the approval of the competent Disciplinary Authority, namely, the Finance Minister, are liable to be quashed and set aside. We order accordingly. We also grant the liberty to the respondents to proceed against the applicants in the respective OAs and frame charges if the concerned competent authority would approve the charge memo in the respective cases.
10. In terms of our above orders, all the OAs listed here are allowed. This order is subject to the final outcome of the B. V. Gopinaths case (supra) under consideration of Honble Supreme Court of India. As mentioned above, the respondents would be within their right to seek recall or review of our orders if the Honble Supreme Court may reverse the judgment passed by this Tribunal and the High Court.OA No. 4212/2011
2. This Original Application was filed by the same Applicant and the issue under consideration was that when the case of an employee is kept in sealed cover as he was facing departmental action and when the charge in question was set at naught by the court or tribunal, whether the sealed cover has to be opened to give effect to the recommendations of the Departmental Promotion Committee (DPC for short) or not. This Tribunal noted the fact that the Applicant was appointed in 1994 as Assistant Provident Fund Commissioner (APFC for short) in the Respondent-Employees Provident Fund Organisation (EPFO for short) and later promoted as Regional Provident Fund Commissioner (RPFC for short) Grade-II in June, 2003. On 18.12.2008, the Respondents issued charge sheet for proceeding against him for major penalty on the basis of allegations pertaining to the years 1998-2000. The applicant challenged the said charge memo in OA No.3486/2010 (supra) on various grounds, including that the same was not approved by the competent authority. The said OA was allowed on 26.08.2011. On 08.09.2011, the applicant submitted a representation for opening the sealed cover as the aforesaid charge sheet dated 18.12.2008 has since been set aside by this Tribunal. As the respondents have not considered his aforesaid representation, he has filed this OA seeking a direction to the Respondents to open the sealed cover in his case and to give effect to the recommendations made by the DPC. This Tribunal allowed this OA vide order dated 07.03.2012 and directed the Respondents to open the sealed cover in his case and give effect thereto. It was also ordered that if in consideration of the recommendations made by the DPC, the applicant is promoted to the post of RPFC Grade-I, his seniority would reckon from the date when his case was put in sealed cover and persons junior to him were promoted. The relevant part of the said order reads as under:-
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
5. It could not be disputed during the course of hearing that the only impediment in the way of the applicant for his promotion to the post of RPFC Grade-I was the chargesheet that was pending at the time when the case of the applicant came up for consideration. If that be so, once the charge has been quashed by a court of competent jurisdiction, the sealed cover adopted in the case of the applicant has to be opened and given effect to. The plea raised by the respondents, as mentioned above, justifying approval of the charge is misconceived. In an inter partes judgment, it has been held that the charge against the applicant was not approved by the competent authority. The respondents cannot re-agitate the matter which stood adjudicated by this Tribunal, as mentioned, in an inter partes judgment. The only course open to them was to file a writ against the order passed by the Tribunal, which, admittedly, has not been done so far, even though it is contemplated. We may only mention that the connected OAs including that of the applicant came to be disposed of vide order dated 26.08.2011, wherein we have observed that the judgments of this Tribunal in S. K. Srivastava v Union of India (OA No.1434/2008) and B. V. Gopinath (supra) on the same point as involved in the case of the applicant and the connected matters, have since been confirmed by the High Court. In the concluding part of our judgment, we have also mentioned that in case the judgment of the Tribunal or the High Court is set aside by the Honble Supreme Court, the respondents may seek recall of our order by review. While dealing with a similar controversy, and in particular, as regards pendency of appeal before the Honble Supreme Court, in OA No.165 of 2011 in the matter of V. Appala Raju v Union of India, decided on 12.09.2011, we observed as follows:
The applicant challenged the departmental proceedings initiated against him in this Tribunal in OA No.2582/2009, primarily on the ground that the chargesheet framed against him had since not been approved by the competent authority. Same very issue was raised by number of employees, and, therefore, all such matters were clubbed and came to be disposed of by this Tribunal by common order dated 24.2.2010. It is the case of the applicant that one Shri B. V. Gopinath filed OA in this Tribunal on exactly the same grounds which were taken by the applicant in his OA, and the same was allowed by holding that the chargesheet had to be approved by the disciplinary authority. The respondents challenged the order passed by this Tribunal in the matter of Shri Gopinath in WP(C) No.10452/2009 before the High Court, which has since already been dismissed vide order dated 28.7.2009, upholding the view of this Tribunal. One Shri S. K. Srivastava filed OA in this Tribunal on similar grounds, which too was allowed, which order as well has been upheld by the High Court, confirming the view of this Tribunal. Despite the respondents having implemented the judgment of this Tribunal confirmed by the Honble High Court in the two cases referred to above, no orders for re-opening the sealed cover in the case of the applicant have been passed. As regards the SLP filed by the respondents in the case of Shri Gopinath, it is pleaded that the Law Officer gave opinion for implementing the judgment, as a result whereof sealed cover in respect of Shri Gopinath was opened and promotion order in his case was issued on 15.12.2009, and that the Honble Supreme Court has not granted any stay in the SLP. Copy of the order in the case of Shri Gopinath passed by the Supreme Court on 28.2.2011 has been placed on records to show that only notice has been issued on condonation of delay as well as on the SLP, and the respondent Gopinath was given three weeks time to file counter affidavit.
6. In view of the discussion made above, this Original Application is allowed. Direction is issued to the respondents to open the sealed cover in the case of the applicant and give effect thereto. If in consideration of the recommendation made by the DPC, the applicant is promoted to the post of RPFC Grade-I, his seniority would reckon from the date when his case was put in sealed cover and persons junior to him were promoted, even though he may not be entitled to the salary attached to the promotional post, but the same shall be notionally fixed. There shall, however, be no order as to costs.
3. The Respondents challenged the aforesaid orders of this Tribunal before the Honble High Court of Delhi in W.P. (C ) No.2107/2012 and W.P. ( C) No.5023/2012 respectively. The High Court, vide its common order dated 26.07.2013 observed that this Tribunal did not look into the relevant record, i.e., the files of the EPFO and the Ministry of Labour and Employment. Therefore, with the consent of the learned counsel for the parties, both the aforesaid Writ Petitions were disposed of setting aside the order of this Tribunal dated 26.08.2011 passed in OA No.3486/2011 (supra) and order dated 07.03.2011 in OA No.4212/2011 (supra). Both the Original Applications were accordingly restored. While remanding the case, the High Court has also directed to call for the two files bearing Nos. (i) Vig.VII(24) 2001 and (ii) EPFO Vig.VII (24) 2001/3523 and another file of the Ministry of Labour and Employment No.C-11016/11/2008-SS-1 and to verify whether the prior approval of Competent Authority, i.e. the Chairman, CBT, EPF i.e. the Honble Minister of State of the Ministry of Labour and Employment was obtained or not for initiating the major penalty proceedings against the respondent, i.e., Applicant herein. The High Court has also directed this Tribunal to specifically look into the record to determine as to (i) what was the nature of approval granted i.e. was it limited only to initiate the disciplinary proceedings; (ii) whether approval of the charge sheet was accorded by the Honble Minister acting in its capacity as the Chairman of CBT, EPF. The High Court has also given liberty to the Respondent, i.e., Writ Petitioner to place any other relevant file which would throw light on the subject. Again, the High Court has directed that this Tribunal shall keep in mind the law laid down by the Supreme Court in Chairman-cum-Managing Director of India Limited and Ors. Vs. Ananta Saha and Ors. JT 2011 (4) SC 252. Further, the High Court expressed its hope that the decision of the Supreme Court which pertains to a matter relating to one B.V.Gopinaths case (supra) currently awaiting pronouncement of decision before the Supreme Court would be rendered and the same would also be considered by the Tribunal.
4. We have heard the learned counsel for the Applicants Shri M.K. Bhardwaj and the learned counsel for the Respondents Ms. Aparna Bhatt.
5. We have also gone through the judgment of the Apex Court in Chairman-cum-M.D., Coal India Limited and Others (supra). Paras 27 to 29 of the said judgment are relevant and they are reproduced as under:-
27. The proceedings were purported to have been revived by the CMD, ECL and the said order dated 17.1.2002 reads as under:
"In the matter of C.R. No.11177/W of 1993, Dr. Ananta Saha Vs. ECL & Ors., Hon'ble High Court, Calcutta has passed an order upon the appellant to start enquiry proceedings, de-novo, giving adequate opportunity to the petitioner and in the light of the order passed by the Hon'ble High Court Calcutta on 8.8.2001, it will depend on a fresh order to be passed by the Disciplinary Authority/CMD, ECL.
In the above circumstances, it is proposed that an Inquiring Authority and a Presenting Officer may be appointed to conduct the departmental enquiry in terms of the order dated 8.8.2001 of Division Bench of Calcutta High Court for a fresh enquiry into the charge sheet No.ECL-5(D)/113/1070/320 dated 26.7.1991 issued to Dr. Ananta Saha, M,O. Kalla Hospital, for this purpose the following names are furnished.
1. Dr. R.N. Kobat, CMO, Sanctoria Hospital - Inquiring Authority
2. Sri M.N. Chatterjee, S.O., Admn. Dept. - Presenting Officer Put up for kind approval.
Sd/-
CMD OSD(PA & PR) Sd/- Sd/- 17.8.2002"
28. The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record.
29. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the Statutory Rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the inquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the inquiry officer or the authority. (Vide Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541). Thus, the above referred to order could not be sufficient to initiate any disciplinary proceedings.
6. Meanwhile, the Apex Court has dismissed the SLP filed in the case of B.V. Gopinath (supra) on 05.09.2013 (Union of India & Others Vs. B.V. Gopinath JT 2013 (12) SC 392). The relevant part of the said judgment reads as under:-
38. We have considered the elaborate submissions made by the learned counsel for the parties.
39. Article 311(1) of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all India service can be dismissed or removed by an authority subordinate to that by which he was appointed. The overwhelming importance and value of Article 311(1) for the civil administration as well as the public servant has been considered stated and re- stated, by this Court in numerous judgments, since the Constitution came into effect on 19th January, 1950. Article 311(2) ensures that no civil servant is dismissed or reduced in rank except after an inquiry held in accordance with the rules of natural justice. To effectuate the guarantee contained in Article 311(1) and to ensure compliance with the mandatory requirements of Article 311(2), the Government of India has promulgated CCS (CCA) Rules, 1965.
40. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge sheet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.
41. In fact, issuance of the office order No.205 dated 19th July, 2005 makes it evident that the respondents were aware of the legal position. The office order clearly sets out the levels of the decision making authorities depending on the gravity of the consequences that would have to be faced by a delinquent public servant in case the decision is taken to proceed against the public servant. Clause (1) deals with closure of complaints which are anonymous/pseudonymous; if the decision is taken to close the complaint it can be taken by the CVO. But in case of verifiable facts, the complaints have to be referred to the next level of hierarchy CVB (Central Vigilance Bureau). For placing an officer under suspension, the decision has to be taken by the Finance Minister himself. Even review of suspension at quarterly/half yearly interval rests with the Finance Minister. This is so, as suspension during contemplation/pendency of enquiry, though may not be penal in nature per se, still has very serious adverse consequences on the professional as well as the personal life of the officer suspended. The office order recognizing the gravity of the consequences ensures that the decision in relation to suspension/review of suspension shall be taken by the highest authority in the department i.e. the Finance Minister. In matters related to reference to CVC for first stage advice, the competent authority is the Secretary (Revenue). Similarly, for reconsideration of CVC's first stage advice, again the competent authority is the Secretary (Revenue), but in case of disagreement with CVC's first stage advice on approval for referring the case to Department of Personal and Training, the competent authority is the Finance Minister.
42. Clause (8) of the Circular makes it abundantly clear that it relates to approval for issuing charge memo/sanction of prosecution. A plain reading of the aforesaid clause shows that it relates to a decision to be taken by the disciplinary authority as to whether the departmental proceedings are to be initiated or prosecution is to be sanctioned or both are to commence simultaneously. The competent authority for approval of the charge memo is clearly the Finance Minister. There is no second authority specified in the order. We do not agree with Ms. Indira Jaising, learned Additional Solicitor General that the use of the word approval of is not an expression distinct from approval for initiating major penalty proceedings. Under Clause (9), the department firstly puts up the file before the Finance Minister seeking approval for issuing charge memo/sanction of prosecution. The department is seeking an order as to whether the officer is to be proceeded against departmentally or criminal proceedings are to be initiated or both proceedings are to be commenced simultaneously. When the decision is taken by the Finance Minister that the departmental proceedings are to be held (initiation), only then the question of approval of charge memo arises. The department would thereafter complete the necessary formalities and then place the file before the Finance Minster, for approval of charge memo. This provision is in harmony with the mandate contained under Articles 311(1) and (2) that no civil servant shall be dismissed or removed by an authority subordinating to that by which he was appointed. The second limb of the same direction is that punishment on a public servant of dismissal, removal or reduction in rank can only be imposed when the charges have been proved against him in a departmental enquiry held in accordance with the rules of natural justice. Rule 14 of the CCS (CCA) Rules provides for holding a departmental enquiry in accordance with the provisions contained in Article 311(2) of the Constitution of India. Clause (8) also makes it clear that when the Finance Minister is approached for approval of charge memo, approval for taking ancillary action such as appointing an inquiry officer/presiding officer should also be taken. Clause (9) in fact reinforces the provisions in clause (8) to the effect that it is the Finance Minster, who is required to approve the charge memo. Clause (9) relates to a stage after the issuance of charge sheet and when the charge sheeted officer has submitted the statement of defence. It provides that in case the charge sheeted officer simply denies the charges, CVO will appoint an inquiry officer/presiding officer. In case of denial accompanied by representation, the Chairman is to consider the written statement of defence. In case the Chairman comes to a tentative conclusion that written statement of defence has pointed out certain issues which may require modification/amendment of charges then the file has to be put up to the Finance Minster. So the intention is clearly manifest that all decisions with regard to the approval of charge memo, dropping of the charge memo, modification/amendment of charges have to be taken by the Finance Minister.
XXX XXX XXX
50. For the reasons stated above, we see no merit in the appeals filed by the Union of India. We may also notice here that CAT had granted liberty to the appellants to take appropriate action in accordance with law. We see no reasons to disturb the liberty so granted. The appeals are, therefore, dismissed.
7. We have also perused the copies of the relevant notings of the Respondents in the file. It is seen that the Respondent-EPFO on 14.08.2008 put up the proposal to Minister of State (IC) (L&E) in his capacity as the Chairman (BT, EPF) and the Disciplinary Authority of the Applicant for taking a view regarding initiation of major penalty proceedings against the Applicant. The said Disciplinary Authority saw the aforesaid proposal on 24.09.2008 and simply signed.
8. From the aforesaid notings, it is very much clear that even though the Disciplinary Authority, namely, the Honble Minister has appended his signature in approval for initiating the disciplinary proceedings against the Applicant, he has not applied his mind at all. As held by the Apex Court in Ananta Saha and Others (supra), the approval to initiate disciplinary proceedings and the approval of the charge sheet against an employee cannot be done as a mechanical exercise. On the other hand, there should be a conscious decision on the part of the Disciplinary Authority whether any disciplinary action should be initiated against the Applicant or not. Reconfirming the aforesaid legal position, the Apex Court has also dismissed the SLP filed against the order of the High Court in B.V. Gopinaths case (supra).
9. In the above facts and circumstances of the case, we allow both these Original Applications. Consequently, we quash and set aside impugned charge sheet dated 18.12.2010 as illegal and arbitrary. As corollary, we also declare that the action of the Respondents not opening the sealed cover containing recommendations of the DPC held on 23.05.2011 in the case of the Applicant for the year 2010-11 and 2011-12 is illegal and arbitrary. We, therefore, direct the Respondents to open the aforesaid sealed cover in his case for promotion to the post of RPFC Grade-I for the years 2010-11 and 2011-12 and to promote him to the said post from the date his juniors have been promoted with all consequential benefits except back wages, if he has been found otherwise fit by the DPC. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. However, the Respondents are at liberty to take appropriate action in the disciplinary case against the Applicant in accordance with law, if so advised.
10. There shall be no order as to costs.
Let a copy of this order be placed in both the files.
(Ashok Kumar) (George Paracken)
Member (A) Member (J)
Rakesh