Central Administrative Tribunal - Delhi
Subhash Chander S/O Shri N.D. Sharma vs Employees State Insurance Corporation ... on 17 April, 2007
ORDER Neena Ranjan, Member (A)
1. As the issues involved in both the OAs are more or less identical, the same are disposed of by this common order.
2. The first OA No. 1833/2006 is filed against the impugned charge-sheet dated 31.5.2006 and order dated 28.7.2006 by which respondents, without giving an opportunity to make representation against the charge-sheet, decided to conduct an enquiry and appointed Inquiry Officer as well as Presiding Officer on 28.7.2006. In second OA No. 2065/2006 also the impugned charge-sheet dated 3.7.2006 and orders dated 7.9.2006 were served by respondents in the same manner. Thereafter, enquiry against the applicant began and Inquiry Officer as well as Presiding Officer were appointed on 28.7.2006. This action is held by applicant as illegal, unjust, arbitrary and against the principles of natural justice and, therefore, the same are liable to be quashed and set aside by the Tribunal.
3. This OA has been filed to obtain following reliefs:
(a) to quash the impugned charge-sheet dated 31.5.2006 with all consequential benefits;
(b) though the main relief of the applicant is in respect of quashing the charge-sheet, but the applicant also prays for an alternative relief in case he fails to get the main relief, that is the Hon'ble Tribunal to pass an order to quash the impugned orders dated 28.7.2006 and direct respondents to supply readable copies of relied upon documents and copies of additional documents asked for by applicant.
4. In first the facts are that applicant while posted as Insurance Inspector on 9.2.2000 inspected M/s. Plasser Pvt. Ltd., Faridabad for the period w.e.f. 5/99 to 1/2000, calculated wages as per norms and deposited Rs. 10,881/- in the office of respondents. After this inspection, a test check was conducted by Shri S.S. Sharma, Assistant Director, who calculated the wages and found that applicant had omitted wages amounting to Rs. 33,845/- leading to loss of Rs. 2,200/- to the Corporation. In this report Shri S.S. Sharma also indicated that there was no discrepancy/omission/negligence or dereliction of duty on the part of the applicant. Shri Sharma sought and obtained a satisfactory clarification for the above mistaken calculation of Rs. 33,845/- by a reply dated 27.8.2004. Hence, the case was filed by the competent authority.
5. When respondent Nos. 3 and 4 were posted as Regional Directors on 20.4.2005 in Faridabad the applicant was the General Secretary of the ESIC (employees ) Union ( a duly approved body of the respondents). On 3.10.2005, an election was conducted for office bearers of the Union, in which applicant did not contest and the opposite party candidate was elected as General Secretary, i.e., Shri K.K. Kaushik. In an earlier election Shri K.K. Kaushik had lost to petitioner. Now, after his election, respondent No. 4 with the connivance of Shri Kaushik, started harassing/victimizing applicant and issued a biased show cause notice dated 27.2.2006 in respect of the alleged negligence committed by applicant on 9.3.2000 and on 13.6.2000. The applicant represented against the same and clarified that the said subject matter had been decided in the year 2004 and, therefore, cannot be re-opened.
6. In this charge-sheet, respondents alleged that applicant committed negligence and omission and relied upon six documents to prove the same. These copies were supplied to the applicant, along with the charge-sheet, but the copies were totally illegible, so applicant made a representation on 30.6.2006 requesting the respondents to supply readable copies and also requested for three additional documents. It is also contended that respondent Nos. 3 and 4 who, are not the disciplinary authority in the case of applicant and hence applicant made another representation to the respondent No. 2 on 21.8.2006 to supply all these documents. However, till date, no reply has been received.
7. Respondents have controverted these allegations and stated that the very prayer in the application is not legally tenable in view of settled position of law that no court or Tribunal would be justified to go into whether such charges are true for this is a matter for consideration of relevant evidence etc. at the enquiry. Therefore, in view of the ruling of the Hon'ble Supreme Court in the case of Dy. Inspector General of Police v. K.S. Swaminathan , the Tribunal should reject the present OA. Moreover, the Apex Supreme Court in the case of State of Rajasthan v. B.K. Meena has repeatedly held that stay of disciplinary proceedings by Tribunals cannot be a matter of course because the Inquiry Officer has to conduct an enquiry expeditiously and staying of an enquiry impedes departmental proceedings and is not conducive for effective administration.
8. In second OA No. 2065/2006 the applicant has stated that he was appointed initially on 7.4.1977 as LDC in the department. He rose to the level of Branch Manager and is presently working on the said post at Ambala. While working as Insurance Inspector during the period April, 2001 to March, 2002, applicant inspected the records of M/s Bharat Gears Ltd. At that time, i.e., on 20.4.2005 respondent No. 3 and 4 were posted as Regional Director in Faridabad. On 3.10.2005 an election was conducted for electing the office bearers of the Union in which the applicant did not contest. The opposite party candidate Shri K.K. Kaushik was elected as General Secretary, who had lost to the petitioner previously. From then onwards, respondent No. 4 in connivance with Shri K.K. Kaushik started harassment of the applicant.
9. Between April, 2001 to March, 2002 reports had been submitted to the satisfaction of competent authorities. Now these two respondents re-opened these matters and when demands were raised the employer also raised this matter before the competent forum. Based on this, respondent Nos. 3 and 4, in a biased manner, after four years, issued a show cause notice dated 20.2.2006 in respect of alleged negligence committed by applicant, during the period April, 2002 to March, 2002. On 6.3.2006, applicant made a representation to respondent No. 3 requesting for supply of basic records/documents on which show cause notice had been based without doing this, respondent Nos. 3 and 4 issued the impugned major penalty charge sheet vide order dated 3.7.2006 and a memorandum to the following effect was issued in which it is alleged that applicant committed negligence etc.:
Memorandum The undersigned propose to hold an inquiry against Shri Subash Chander, Branch Manager, Branch Office, ESI Corporation, Ambala City under Regulation 14 and Para 3 of the Third Schedule of the Employees' State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959 as amended. The substance of the imputations of misconduct and misbehaviour in respect of which, the inquiry is proposed to be held is set out in the enclosed statement of article of charge (Annexure-1). A statement of imputations of misconduct or misbehaviour in support of each article of charge is enclosed (Annexure-II). A list of documents by which the articles of charges framed are proposed to be sustained and a list of witnesses by whom, the article of charge are proposed to be sustained are also enclosed (Annexures-III and IV).
10. This action on part of respondents caused prejudice to the applicant and, therefore, the impugned charge sheet is liable to be quashed on this sole ground alone as held by the Hon'ble Supreme Court in the case of State of A.P. v. N. Radhakishan as well as in the case of Chander Bhushan v. NCT of Delhi in OA 2359/2003 on 14.5.2004 which has been upheld by the Hon'ble Delhi High Court and subsequently by the Hon'ble Supreme Court wherein it has been held that ' It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations'.
11. Applicant has further cited other cases to bolster his case, i.e., Committee of Management, Kisan Degree College v. S.S. Pandey ; State of U.P. v. Shatrughan Lal ; State of Punjab v. Bhagat Ram ; Adya Nath De v. West Bengal SEB and Ors. 2002 (1) SLR 633 to plead that without going into the pleas raised by applicant, respondents had appointed an Inquiry Officer as well as Presiding Officer. In the case of S.S. Pandey (Supra) it was held as under:
Disciplinary Proceeding - Held that the respondent has to be given the opportunity for inspection of documents and thereafter has to be heard at the time of conclusion of the enquiry - Held - That procedure followed by Disciplinary Authority is against principles of natural justice - Upheld the order of high court in setting aside the order of dismissal - Fresh enquiry to be conducted for determining payment of back wages or pensionary benefits for the respondent who has retired.
12. The respondents in their counter have pleaded that in the case of State of Rajasthan v. B.K. Meena it has been held that 'Tribunal cannot interfere in the matter of disciplinary proceedings'. Since staying of such proceedings would be an impediment for the department to proceed to complete the enquiry, which is in conducive for administrative efficacy. The is enquiry is being conducted to examine serious misconduct committed by applicant by recommending wrongful claim of contribution of Rs. 28,234/- on omitted wages to Rs. 4,34,366.75 without verifying complete records/bills etc. of M/s Bharat Gears Ltd., 20, Amarnagar, Faridabad and other such acts e.g. another payment of Rs. 41,79,476/- had been made to various contractors no action was taken against employers in this connection. However, instead of giving a proper explanation and participating in the inquiry, the applicant has filed the present OA alleging various falsehoods against the respondents, with a view to stall the enquiry. As such this OA is liable to be dismissed.
13. In view of the above, it is prayed that the OA be dismissed.
14. We have heard the learned Counsel for parties and perused the judgments cited.
15. In these simple cases, needlessly made complicated, the applicant has been aggrieved by a charge sheet dated 7.3.2006 issued in OA No. 2065 and charge sheet dated 31.5.2006 issued in OA No. 1833/2006 and appointment of an enquiry officer dated 7.9.2006 in OA No. 2065/2006 and 28.7.2006 in OA No. 1833/2006 issued by the concerned respondents. The applicant has assailed these orders on many counts, ranging from allegations of respondents' bias emanating from trade union electoral politics, a gap of over four years between the occurrence of alleged misconduct and the charge-sheet, opportunity not being given to state his defence, the charge-sheet being self contradictory prima facie, and the imputations in the charges amounting not to misconduct, etc. These OAs are full of arrayal of a couple of dozens of court rulings in support of the applicant's contentions.
16. On the other hand, respondents have taken strong exception to applicant not co-operating with the disciplinary proceedings, and rushing to the Tribunal without exhausting remedies available within the department. They have stated that applicant stayed in Faridabad as an Inspector for 21 years, and when faced with his transfer to Ambala, he began to proceed on unauthorized absence thus exhibiting strong vested interest he had amassed in Faridabad. They have submitted that the charge-sheet is based on documentary evidence, and find no reason why the applicant is shying away from facing the same. The learned Counsel for the respondents has argued that this Tribunal should not interfere in the conduct of the disciplinary proceedings, in view of the many pronouncements of the Apex Court in this regard. He has further argued that the interim stay on the disciplinary inquiry by this Tribunal is not called for, its effect being only to delay it.
17. We find that the OAs suffer from the infirmity of being premature, in view of the applicant not availing of the opportunity to state his defence before the enquiry officer. It cannot be disputed that the respondents are competent to initiate departmental action regarding misconduct related to events, any time during the service career of a government servant.
18. We agree with the learned Counsel for the respondents that once a departmental enquiry has commenced, interference is not warranted as a matter of course, as intended by the Supreme Court in Deputy Inspector General of Police v. K.S. Swaminathan and State of Rajasthan v. B.K. Meena , because such interference can only cause delay in the completion of the inquiry. On the other hand, the reliance by the learned Counsel for applicant on the Delhi High Court ruling in Than Singh v. Union of India and Ors. 2003 (3) SCT 450, does not help the applicant because of all the grounds on which a charge sheet can be questioned, none is applicable in the present cases. Mere allegation of bias or mala fide by applicant is not sufficient, unless proved.
19. Moreover, in this case, the respondents have adduced enough facts not only to counter these allegations, but also to show the applicant in a poor light in respect of his attempts to stay on as an Inspector at one place of posting for an inordinately long period during his career. Besides, in the said judgment of the Delhi High Court, the contents of the charges were examined after the inquiry had been completed and punishment orders passed, not before it even commenced. It would not be correct to pre-judge the result of the inquiry.
20. We must observe that of the numerous rulings cited by the applicant in the OAs only a couple were argued by his counsel, which in our opinion deal with easily distinguishable facts and circumstances.
21. Under these circumstances, we find that the OAs must fail primarily on account of their being premature. We do not consider it necessary to go into the merits at this stage. The OAs are accordingly dismissed. The interim stay also stands vacated. No costs. The applicant is directed to fully co-operate with the enquiry officer so as to complete the disciplinary enquiry expeditiously in, say, six months from the date of this order.
Let a copy of this order be placed in OA 2065/2006.