Central Administrative Tribunal - Cuttack
P K Mishra vs Employees Provident Fund Organisation on 20 March, 2025
1 O.A.No. 260/00639 of 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00639 of 2017
Reserved on 19.03.2025 Pronounced on 20.03.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Pradeep Kumar Mishra, aged about 51 years; s/o
late Laxmi Kanta Mishra, resident of Bhavisyanidhi
Colony, Phase-I, Sahid Nagar, Bhubaneswar at
present working as Regional Provident Fund
Commissioner-I, Office of the Regional Provident
Fund Commissioner, Bhubaneswar-751007, Odisha.
......Applicant
VERSUS
Employees Provident Fund Organisation
represented through;
1. Chairman, Central Board of Trustees, Employees
Provident Fund Organisation, Ministry of Labour
and Employment, Government of India, Shrama
Shakti Bhawan, Rafi Marg, New Delhi - 110 001.
......Respondents
For the applicant : Mr. K.C.Kanungo, Counsel
For the respondents : Mr. D.R.Swain, Counsel
Mr. B.N.Nayak, Counsel
2 O.A.No. 260/00639 of 2017
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
As it reveals from the record, on 12.12.1994 applicant initially joined as Assistant Provident Commissioner in EPF Organization. By efflux of time and taking into consideration his dedication, sincerity and good service record, he reached to the level of Regional Provident Fund Commissioner-I on 30.12.2009. The respondents initiated disciplinary proceedings against him vide memorandum dated 21.03.2017 on the following Articles of Charges:
"ARTICLE-I That Sh. P. K. Mishra, while functioning as RPFC-I/OIC at Regional Office, Kolkata during the period from 21.09.2010 to 01.01.2015, has failed to maintain absolute integrity and devotion to duty and committed gross misconduct in as much as he in his capacity as the Assessing Officer under section 7A of the EPF & MP Act 1952 had deliberately with malafide intention restricted the scope of the enquiry under section 7A that was initiated for evasion of membership for the period 08/2002 to 12/2003 in respect of M/s Maple Exports (P) Limited (WB/CA/34352) to 'trainees' only by overlooking other categories of employees engaged in, cutting & skiving and ignored the report dated 05.03.2011 of Sri Rabin Ghosh, EO by not considering the proposed dues of Rs. 2,31,13,172/- in respect of employees engaged in fabrication, cutting and skiving.3 O.A.No. 260/00639 of 2017
By the aforesaid acts of omission and commission, Sh. P. K. Mishra, RPFC-I has exhibited lack of integrity, devotion to his duties and has acted in a manner unbecoming of an employee of the EPFO in violation of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS(Conduct) Rules, 1964 which are mutatis mutandis applicable to the employees of EPFO by virtue of Regulations 27 E.P.F [Staff & Condition of Service] Regulation, 1962 and Rule 18 & 22 of E.P.F. [Officers & Employees' Conditions of Services] Regulations, 2008.
ARTICLE-II That Sh. P. K. Mishra, while functioning as RPFC-I/OIC at Regional Office, Kolkata during the period from 21.09.2010 to 01.01.2015, has failed to maintain absolute integrity and devotion to duty and committed gross misconduct in as much as while conducting enquiry under section 7A of the EPF&MP Act, 1952 for the period 08/2002 to 12/2003 in respect of M/s Maple Exports(P) Limited (WB/CA/34352) for evasion of membership, he with malafide intention did not expand the scope of the Inquiry to cover the period after 03/2006 despite knowing that the establishment is evading deposit of Provident Fund and allied dues in respect of the 'trainees' and other categories of employees engaged in, cutting & skiving thus diving undue favor to the establishment. By the aforesaid acts of omission and commission, Sh. P K. Mishra. RPFC-I has exhibited lack of integrity, devotion to his duties and has acted in a manner unbecoming of an employee of the EPFO in violation of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS(Conduct) Rules, 1964 which are mutatis mutandis applicable to the employees of EPFO by virtue of Regulations 27 E.P.F [Staff & Condition of Service] Regulation, 1962 and Rule 18 & 22 of E.P.F. [Officers & Employees' Conditions of Services] Regulations, 2008."4 O.A.No. 260/00639 of 2017
2. According to the applicant, he joined as RPFC-I, Regional Office, Kolkata on 21.09.2010 and was relieved on 01.01.2015. It is submitted that establishment of M/s Maple Exports(P) Ltd. was inspected by the Squad of EPF Organization, which in its report dated 19.12.2003 submitted that employees engaged under the Factory were not covered under EPF Scheme on the plea that they were trainees engaged as per standing certified rules. Accordingly, proceedings U/s 7-A of EPF and M.P. Act, 1952 was initiated against M/s Maple Exports(P) Ltd. On the basis of a subsequent inspection report dated 20.03.2007, on 09.04.2007 a demand of Rs. 2,35,51,851/- was raised in respect of the trainees and the workers engaged outside the factory for the period 06/2002 to 03/2006. The said order of assessment dtd. 09.04.2007 was set aside by the Hon'ble Calcutta High Court vide their order dated 17.11.2009 in W.P.No. 11100(w) of 2007 as under:
"The impugned order is hereby set aside. All actions, if any, taken on the basis of the impugned order shall deemed to be set aside. The authority shall give a fresh decision in the s.7A proceedings which were initiated by issuing the summons dated March 10, 2004. If the scope of enquiry is expanded for including any category of person, then the authority shall indicate the position by issuing an appropriate notice to the establishment. After giving the 5 O.A.No. 260/00639 of 2017 establishment reasonable opportunity of hearing and recording evidence adduced by the parties, the authority shall give the final decision in the proceedings. The payment made by the establishment in compliance with an interim order made in this writ petition shall abide by the final order that the authority shall make in the s.7A proceedings. There shall be no order for costs."
In pursuance of the aforesaid order of the Hon'ble High Court, on 16.06.2010 notice was issued to the M/s Maple Exports (P) Ltd. to appear in the case.
2a. Applicant, being the RPFC-I, Kolkata, took up the assessment U/s 7A. One Sri Robin Ghosh, Enforcement Officer appeared and submitted about the large amounts being paid to persons who are presumed to be persons working for the establishment. The employer agreed to pay the dues for the trainees and shoulder the liability for the outside employees if found due on verification of records. Accordingly, on 06.12.2010 he directed Sri Ghosh, E.O., to ensure submission of report by 23.12.2010. Sri Ghosh submitted report giving names of 295 employees and contractors engaged by M/s Maple Exports(P) Ltd. during 08/2002 to 03/2006 with amounts paid month wise for fabrication/cutting/skiving charges, who are liable to be treated as employees of M/s Maple Exports (P) 6 O.A.No. 260/00639 of 2017 Ltd. but were not paid EPF contributions. Applicant directed one Sri Ashok Muduli, E.O. to go through the reports of Sri Ghosh and submit his report. On 14.06.2011 Sri Muduli submitted that he has not yet verified the records of individual fabricators and asked for some more time to complete the verification. Applicant directed him to verify the facts relating to the trainees only and decided that other issues of coverage of outside fabricators may be taken up separately. Employer agreed to pay the dues of the trainees. On 29.07.2011, Sri Muduli submitted a report on trainees only, for which, applicant issued order on 16.08.2011 assessing the dues in respect of trainees only demanding Rs. 8,02,399/- with observation that dues for the employees engaged for fabrication/skiving and cutting cannot be decided positively as several squads could not unearth the exact evasion.
2b. On 07.11.2014, applicant was transferred to Bhubaneswar as RPFC-I. It is alleged that applicant did not take any action for three years in respect of the employees engaged outside the factory premises and had received huge amount of wages and, as per his own order dated 16.08.2011 also, he did not try to complete the 7 O.A.No. 260/00639 of 2017 separated proceedings and for such misconduct of the applicant 295 employees of the Factory were deprived from the EPF benefits and illegal benefit of Rs. 2,31,13,171/- was allowed to M/s Maple Exports (P) Ltd. According to him, on receipt of the charge sheet, he submitted representation on 18.04.2017 requesting to supply him the RUDs, granting him a personal hearing and to allow him to peruse the records including the note sheets wherein the matter was dealt into. Without giving him any reply to his representation dated 18.04.2017, the respondents vide order dated 25.09.2017 appointed IO and PO to proceed with the inquiry. He again submitted representation on 22.10.2017 praying inter alia to drop the proceedings.
2c. It is submitted by Ld. Counsel for the applicant that the memorandum of charge nowhere discloses that the action of the applicant as Assessing Officer touched his reputation for integrity or good faith or devotion to duty. The charge sheet also does not show prima facie material that applicant shown recklessness or misconduct in discharging his duties. Order dated 16.08.2011 passed by the applicant for determining PF dues does not reflect any 8 O.A.No. 260/00639 of 2017 negligence or omission of the prescribed conditions essential for exercise of the statutory power. Also, there is no piece of evidence that applicant shown undue favour to the party concerned or his action actuated with any corrupt motive. On the other hand, the Hon'ble High Court of Calcutta had passed some serious comments against his predecessor alleging non-application of mind while passing orders under Section 7A. However, the applicant keeping in view the order of the Hon'ble High Court, issued notice under Section 7A and passed orders which were beneficial to the Trainees/Apprentices. The applicant had ordered that other issues of coverage of outside fabricators may be taken up separately but the successor of the applicant till 2016 did not initiate any proceeding. The segregation of the Trainees/Apprentices from other category of employees was based on the sound reason and feasibility of implementing the order. The respondents without paying any heed to such request proceeded with the matter, thus, he has approached this Tribunal praying to quash the charge sheet dated 21.03.2017. 9 O.A.No. 260/00639 of 2017 2d. According to him, as per the statutory provision, assessment made under Section 7A of EPF Act, 1952 is quasi judicial in nature and, therefore, in terms of Section 18 of the EPF and MP Act, 1952, no disciplinary proceedings can be initiated for such exercise of quasi judicial power. Hence, it is stated that initiation of disciplinary proceedings alleging omission and commission in the matter of making assessment under Section 7A of the EPF Act, 1952, disciplinary proceedings was initiated against Swapan Kumar Bankura, which he had challenged and the Hon'ble High Court of Calcutta vide order dated 27.03.2015 in AST No. 5/2015/CAN 1723/2015 (A/7), quashed the proceedings. The respondents department filed special leave to appeal nos. 22088/2015 before the Hon'ble Supreme Court and the same was dismissed on 08.01.2016 thereby upholding the order of the Hon'ble High Court of Calcutta referred to above. Therefore, according to him, the case in hand, being same and similar, both on facts and law, the disciplinary proceedings initiated against the applicant is liable to be quashed. Further, to fortify his stand, he has also placed reliance on the decision of the Hon'ble Apex Court in the case of Zunjarrao Bhikaji 10 O.A.No. 260/00639 of 2017 Nagarkar Vs UOI & Ors., 1999 SCC (L&S) 1299. Proceeding with the inquiry without supplying him the RUDs nullifies the entire action has also been taken as one of the grounds in this OA. Learned counsel for the applicant has also taken the support of the decisions of CAT, Guwahati Bench in OA No. 62/2018 disposed of on 22.05.2020 (Vinay Kumar vs UOI and Others) CAT, PB, New Delhi in OA No. 1208 of 2013 disposed of on 31.03.2014 (B.B.Mohanty vs Union of India and others) to state that where charge sheet is not sustainable, the Tribunal is entrusted with the power and authority to quash the charge sheet.
3. On the other hand, it is the case of the respondents that the applicant made assessment under Section 7A of the Act by restricting the scope of inquiry to the trainees only and overlooked the other categories of employees engaged in fabrication, cutting and skiving. He passed the order under Section 7A of EPF and MP Act, 1952 without discussing the report dated 05.03.2011 of Sri Robin Ghosh E.O thereby committed grave misconduct with mala fide intention to give undue benefit to the establishment against which such 11 O.A.No. 260/00639 of 2017 assessment was taken up. The said fact having come to the notice, the disciplinary proceedings was initiated against him. By placing reliance on the decision of Hon'ble Apex Court in the case of Secretary, Ministry of Defence and others Vs Prabhash Chandra Mirdha, (2012) 11 SCC 565, and Air India Ltd. Vs. M. Yogeswar Rao, (2000) 5 SCC 467, it has been stated that the charge sheet does not infringe the right of a party, it is when a final order of imposition of punishment or otherwise adversely affecting a party is passed it may have a grievance and cause of action. Since that stage has not reached in the present case, this OA challenging the charge sheet is not maintainable in the present form. Also, by placing reliance on the decision of the Hon'ble Apex Court in the case of UOI & Ors Vs. K.K.Dhawan, 1993 AIR 1478, and UOI Vs A.N.Saxena, AIR 1992 SC 1233, it is submitted by Ld. Counsel for the respondents that disciplinary proceeding for any omission and commission in discharging the quasi judicial duties can be initiated against an employee where the employee concerned acted in a manner as would reflect on his reputation for integrity or good faith or 12 O.A.No. 260/00639 of 2017 devotion to duty and if he had acted in order to unduly favour a party. Accordingly, respondents have prayed for dismissal of this OA.
4. Heard. Perused the OA, counter, rejoinder and notes of submission filed by the parties. We have also gone through the decisions relied on quoted above.
5. The applicant fingers against the authority concerned for proceeding in the matter in violation of natural justice inasmuch as without supplying him the RUDs and documents sought by him. The respondents relied upon Twenty-three (23) RUDs to bring home the allegation against the applicant but those documents have not been supplied to him along with the chargesheet. Therefore, he had sought those documents to submit the reply. Without giving him any reply on his application, relating to give him personal hearing or supplying RUDs, respondents appointed IO and PO to proceed in the inquiry. One of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents, which are proposed to be utilized against 13 O.A.No. 260/00639 of 2017 that person, are indicated in the charge sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him (Ref: Chandrama Tewari vs. Union of India, AIR 1988 Sc 177; Kashinath Dikshita vs. Union of India & Ors, AIR 1986 SC 2118; State of Uttar Pradesh vs. Mohd. Sharif, AIR 1982 SC 937). Also, in the case of High Court of Punjab & Haryana vs. Amrik Singh 1995 (Supp.) 1 SCC 321, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges. It was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would be violated. Further, it is fundamental principle that the charge sheet in departmental proceedings being most vital, it should contain the details of the allegation(s), the rule(s) that was/were violated by the employee concerned and under which rule the employee concerned shall be proceeded. The idea of post-decisional-hearing has been developed to maintain a balance between administrative efficiency 14 O.A.No. 260/00639 of 2017 and fairness to individuals. In post-decisional-hearing, an individual is given an opportunity to be heard after a tentative decision has been taken by the authorities. But, it is noticed that in the statement of imputation, the respondents placed reliance on the decision of the Hon'ble Supreme Court, which is in violation of the basic principles of natural justice, which requires pre-decisional hearing and not the post-decisional.
6. One vital point that came to the notice of the Tribunal is that applicant in its order dated 16.08.2011 had already observed that "question of identifiability of such employees in connection with 'Fabrication Charges, Skiving Charges and Cutting Charges cannot be established in the form of computation of EPF liability. It is also considered that by way of mere hypothesis and synthesis that there has been certain amount booked in the books of accounts of the establishment, generation of liability cannot be a positive perspective for the purpose of assessment of dues. Such hypothetical notion would lead the matter to an infructuous assertion and thereby making a guarantee of social security of the workers whose identification has already been established would be frustrated. It is also considered since 15 O.A.No. 260/00639 of 2017 by exercising a number of inspections by a series of squads from the department could not un-earth exact evasion apart from the 'Trainees' as detected, hence, it is ordered to separate the proceedings in two folds viz. one for determining the dues for the 'Trainees' and other issue is to be conducted separately for deciding the other aspects involved in the order already passed to this effect by the then 7A authority." While assessing a total sum of Rs. 8,02,399/- in respect of 'Trainees' on the basis of Enforcement Officer's report dated 29.07.2011, it was further ordered that since "despite due diligence and logical approach in the instant proceedings, in the event of any new disclosure of records, documents information over and above the records, documents, submission and information as considered during the period of inquiry for the period stated herein above at any point of time subsequent to the date of passing of this order in terms of Sec. 7B and 7C of the EPF & MP Act, 1952, the authority in this regard shall be at liberty to review and/or re-open the case on the basis of such revelation for further inquiry/proceedings under relevant provisions of EPF & MP Act, 1952". Hence, it cannot be said that the applicant had acted in a manner as would reflect on his reputation for integrity or 16 O.A.No. 260/00639 of 2017 good faith or devotion to duty. Further, the respondents have alleged that applicant committed grave misconduct with mala fide intention to give undue benefit to the establishment, however, respondents have failed to produce any piece of evidence to prove such malafide intention as alleged against the applicant. No reply is also forthcoming from the respondents that after relieve of the applicant with effect from 01.01.2015 what action has been taken by his successor or the competent authority on the proceeding dated 16.08.2011 submitted by the applicant.
7. We have also seen that similar matter against another RPFC came up for judicial scrutiny before the Hon'ble High Court of Calcutta in the case of Swapna Kumar Bankura (supra) wherein the Hon'ble High Court even by taking note of the case of K.K.Dhawan, quashed the charge sheet by observing as under:
"In the present case, undisputedly the petitioner herein conducted an enquiry under Section 7A of the said Act and exercised powers in a proceedings which should be deemed to be a judicial proceedings under Section 7A (2) of the Act, 1952. We are of the opinion that if the petitioner even assuming exercised his powers beyond his jurisdiction, then the same cannot be a ground for initiation of disciplinary proceedings specially when we find that the said petitioner himself initiated a proceeding under Section 7(C) of the Act."17 O.A.No. 260/00639 of 2017
8. The aforesaid decision in the case of Swapna Kumar Bankura (supra) has also been upheld by the Hon'ble Apex Court vide order dated 08.01.2016 in Special Leave to Appeal No. 22088/2015. We are reminded by the decision of the Hon'ble Apex Court in the case of Union of India Vs. Kunisetty Satyanarayana [2006 (12) SCC 28]. In the said case, while allowing appeal, the Hon'ble Supreme Court considered the issue whether in writ petition quashing of charge sheet or show cause notice is a discretionary remedy and, if so, whether such discretion should not ordinarily be exercised by quashing a show cause notice or charge-sheet as the same does not infringe the right of anyone but held that in some very rare and exceptional cases the High Court can quash a charge sheet or show- cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. Also, in the case of State of Punjab vs V.K.Khanna & Ors, AIR 2001 SC 343, it has been held that while it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the 18 O.A.No. 260/00639 of 2017 event there is an element of malice or mala fide motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and, in that event, law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. Thus, in view of the facts, statutory provisions and law discussed above, we are of the considered opinion that the charge sheet dated 21.03.2017 is not sustainable in the eyes of law and the same is liable to be quashed and is accordingly quashed.
9. In the result, this OA stands allowed. There shall be no order as to costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS