Central Administrative Tribunal - Patna
Deepak Tigga vs Employees Providend Fund Organisation ... on 29 October, 2024
-1- OA/051/00030/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT SITTING AT RANCHI
OA/051/00030/202
OA/051/00030/2023
Reserved on : 17.10.2024
Pronounced on : 29.10.2024
CORAM
HON'BLE MR. KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
HON'BLE MR. RAJVEER SINGH VERMA, JUDICIAL MEMBER
Deepak Tigga, son of Late Mahadev Tigga, aged about ut 63
years, resident of Dibadih Girjatoli, Near Railway Line, P.O.-
P.O.-
Doranda, P.S.- Doranda, District-Ranchi,
District Jharkhand
.... Applicants.
By Advocate - Shri J.J. Sanga
-Versus
Versus-
1. Union of India through the Secretary, Government of India,
Ministry of Labour and Employment, Shram Shakti Bhawan,
Rafi Marg, New Delhi
Delhi-110001.
2. Chairman, Central Board of Trustee, Employees Provident Fund
Organization, Ministry of Labour, Government ooff India, Head
Office, Bhawishya Nidhi Bhawan, 14 - Bhikaji Cama Palace,
New Delhi
Delhi- 110066.
3. Provident Fund Commissioner, Employees Provident Fund
Organization (Ministry of Labour, Government of India, Head
Office, Bhawishya Nidhi Bhawan, 14-Bhikaji
14 Complex,
ex, New
Delhi
Delhi-110066.
4. Regional Provident Fund Commissioner
Commissioner-1,
1, Employee's
Proivident Fund Organization, Government of India, Ministry
of Labour and Employment, Regional Office, Jharkhand,
Bhagirathi Complex, Near Circuit House, Karam Toli, Ranchi--
834001, Jharkhand.
.... Respondents.
By Advocate(s): Shri Sumit Prakash, ASC
-2- OA/051/00030/2023
ORDER
Per Kumar Rajesh Chandra, A.M. :- This OA has been filed by the applicant seeking the following relief:
relief:-
"(i) For quashing of the order No. C-110251/17/2020-SS-1 C 1 dated 29.06.2021 passed by Under Secretary to the Government of India, whereby and whereunder disciplinary authority in exercise of the power vested vide Rule 9 of the CCS (Pension) Rules, has imposed the penalty against thee applicant and "a cut in pension at the rate of 30% for a period of five years" has been imposed upon the applicant.
(ii) For quashing of the order dated 20.04.2022 passed by Under Secretary to the Government of India, whereby and whereunder on 06.08.2021 021 a application has been preferred by the applicant against the order dated 29.06.2021 before the respondent for the reconsideration has been rejected.
(iii) For direction upon the respondents to refund the amount which has been deducted from the pension of the applicant by way of penalty with statutory interest.
(iv) Grant such other relief(s) as this Hon'ble Tribunal may deem fit in the facts and circumstances of the case including the cost of this application."
1. The facts of the case, as per the t applicant, are that the applicant while functioning as Assistant Provident Fund Commissioner (APFC) at SRO Bhagalpur during the period from 24.08.2009 to 16.11.2010, was entrusted with an inquiry u/s 7C of the EPF & MP Act, 1952 in respect of M/S Katiha Katiharr Medical College, Katihar carrying code number BR/6351. Earlier through a 70 pages order dated 27.01.2006 communicated to the establishment vide letter no. BR/6351/BGP/7C dated 30.01.2006, a sum of Rs. 56,12,483/ 56,12,483/- was assessed (in addition to the determined determined amount of Rs. 42,90,600/ 42,90,600/- under section 7B) by Shri S Pankaj Raman, RPFC-II, II, Regional Office, Patna. The establishment moved the Hon'ble EPFAT and filed an appeal challenging the aforesaid 7C order dated
-3- OA/051/00030/2023 30.01.2006. Hon'ble EPFAT vide order dated 07.08.2008, 07.08.2008, quashed the 7C order ""being being violative of the law and remanded the case back to the competent authority to re re-initiate initiate the proceeding for determination of escaped amount under Section 7C of the Act Act." After receipt of the order dated 07.08.2008 passed b byy the Hon'ble EPFAT, Sri O. P. Dubey, the then APFC & Officer-In-Charge, Officer Charge, SRO, Bhagalpur issued one notice u/s 7C to the establishment vide no. BGP/EB/BR/6351/873 dated 31.10.2008 directing the establishment to appear on 25.11.2008 along with the desired re records.
cords. As per the Daily Order Sheet dated 25.11.08, Sri Arbind Kumar Singh, representative of the establishment appeared on behalf of the establishment and Sri V.K. Roy, EO appeared on behalf of the department and Sri Roy again took up/raised the decision of Hon'ble High Court, Patna vide LPA 340 of 2005 against which establishment had filed objections earlier which was already decided in a judicial forum i.e. EPFAT. SShri O. P. Dubey, APFC vide Daily order sheet dated 25.11.08 noted that:
"From the case records, cords, I find that APFC vide his order dated 27.05.2002 determined an amount of Rs.79,71,036/-
Rs.79,71,036/ and Rs. 35, 37,830/- u/s 7-A A& 7-Q Q respectively. On application for review of the order APFC determined the amount u/s 7-B B as Rs.29, 12,363/-
12,363/ and Rs. 13, 78,237/- u/s 7-A & 7-Q Q respectively vide order dated 8.1.2004. Both the orders were examined by the RPFC-II II and he was kind enough to pass his order dated 27.1.2006 determining the dues u/s 7-A & 7-Q Q of the Act.
I hold the view that RPFC-IIII must have the sufficient reasons with him to take up assessment of escaped amount u/s 7-C 7 of the Act. Being a lower quasi-judicial judicial authority I do not consider it appropriate to look into the reasons which prompted the higher quasi-judicial quasi judicial authority to take up the matter U/S 7-C C of the Act. In this view, I am strengthening the
-4- OA/051/00030/2023 decision of the Hon'ble High Court, Patna in LPA 340 of 2005 stated overleaf.
Hence this proceeding stands closed."
2.1 Against the above order dated 25.11.2008, 25.11.2008, establishment vide its application dated 30.12.2008 applied for review. Accordingly, SRO, Bhagalpur forwarded the order copy along with a note to the RPFC (C&R) Regional Office, Patna for necessary orders orders. Upon pon this, RPFC(LL&R), &R), RO, Patna vide his order dated 25.02.2008 (should be 25.02.2009) stated that as per the order dated 7.08.
7.08.2008 08 of the EPFAT, case was remanded back to competent authority for determination of escaped amount u/s 7 7-C of the Act and EPFAT order made it clear that only the authority wh who o had exercised the powers u/s 7-A A and 7-B B of the Act can exercise the power u/s 7-C 7 C of the Act.
Hence APFC, SRO, Bhagalpur was to exercise the powers u/s 7 7-C C of the Act. Accordingly, summons u/s 7C of the Act, for the period from 4/96 to 12/2000 was issue issuedd by Sri O. P. Dubey, APFC & OIC, SRO, Bhagalpur on 27.03.09 and the establishment was advised to appear on 20.04.2009. On 20.4.2009, 09, the representative of the establishment and Sri V.K. Roy, EO from the department side appeared and thereafter on the basis of the petition filed by the establishment on 20.04.09, it was found that the documents as filed by the establishment during earlier proceedings were required to be gone through and accordingly an adjournment up to 06.07.2009 was allowed allowed. In the meantime,, since Shri O.P. Dubey, APFC was promoted to the post of RPFC (II), the proceedings were taken over
-5- OA/051/00030/2023 by the applicant and summons issued fixing 09.10.09 as the next date of hearing hearing. The proceedings were further adjourned to several dates.
dates.
The establishmen establishmentt appeared on 09.10.09 and filed preliminary objection petition dated 09.10.09 in response to the notice dated 27.08.09. During the course of proceedings, the the applicant & Assessing Officer directed Sri L.P. Gariban, Gariban, Enforcement Officer vide letter no. BGP/ BGP/EB/BR/6351/7C/856 EB/BR/6351/7C/856 dated 29.10.2010, 29.10. 10, to visit the establishment, to prepare counter comments on the rejoinder of the college/ college/establishment.. A report was submitted by Sri L.P. Gariban,, EO vide letter dated 29.10.2010. Shri Gariban, Gariban, Enforcement Officer in his report also enclosed the documents, viz (i) copy of letter dated 22.08.2005, (ii) Section Section- 7B order sheet dated 08.01.2004, (iii) Copy of note sheet dated 03.12.1996 and (iv) copy of challans of Rs. 29,12,363/ 29,12,363/- and Rs. 13,78,237/-.
2.2 The applicant on the proceeding under Section 7-C 7 C of the Act after having covered the legal ground relating to the enquiry under Section 7 7-C C for determination of the escaped amount of the Act had come to the conclusion and passed an order dated 04.11.2010 holding that there is no reasonable ground to determine the amount as there is neither complaint from any of the members nor from the union of employees and dropping/closing the proceedings under Section 7 7-C.
-6- OA/051/00030/2023 2.3 It is submitted by applicant that hat almost after two years the applicant received a memorandum from the CPFC dated 07.09.2012 whereby and whereunder the respondents proposed to hold an enquiry against the applicant and disciplinary proceeding was initiated against the applicant under Rul Rule e 10 of the EPF Staff (CCA) Rules, 1971 vide charge memorandum dated 17.09.2012 (Annexure (Annexure--
1) for acting negligently and recklessly in conducting the concluding an inquiry under Section 7 C of the EPF and MP Act, 1952 while functioning as APFC at Sub Region Regional al Officer, Bhagalpur during the period 24.08.2009 to 16.11.2020 and vide order dated 29.06.2001 (Annexure (Annexure-2)
2) disciplinary authority imposed the penalty of "a cut in pension at the rate of 30% for a period of five years" against the applicant under Rule 9 of the CCS(Pension) Rules, 1972. When a petition dated 06.08.2021 was preferred by the applicant against the said penalty it was rejected vide order dated 20.04.2022 (Annexure (Annexure--
3). Hence, the OA.
3. The respondents EPFO have filed written statement in which which they have made parawise reply to the OA. In reply to para 4.12 of the OA, it is contended that the order dated 27.01.2006 of Shri Pankaj Raman was challenged before the EPFAT and vide order dated 07.08.2008 EPFAT had quashed the order as being without jurisdiction and not on merit holding that only the authority exercising power u/s 7A or 7B can exercise authority u/s 7C of the
-7- OA/051/00030/2023 Act and remanded the case back to the competent authority to re re--
initiate the proceeding for determination of escaped amount under the Act. In reply to para 4.22 of the OA, it is submitted that the Enforcement Officer (RO) Shri L.P. Gariban neither verified the books of account of the establishment nor any salary/wages register and gave a clean chit to the establishment that th there ere existed no evasion, without even examining any of the basic document/records. In reply to para 4.24 of the OA, it is contended that the as per EPFO, HO circular dated 04.08.2010 Assessing Officer while issuing the orders shall scrutinize the inspection report and satisfy himself that the EO has inspected all the records while submitting the reports. It is averred that instead of examining or checking the specific cases of defaults, to arrive at this decision, the CO depended mainly on report of Shri L.P L.P.. Gariban, EO. The CO neither went through the documents or specific cases of evasion of EPF dues mentioned in the report of Shri Pankaj Raman nor called upon the establishment to produce the material documents in order to verify the truth or other wise o off the specific points raised in the order dated 27.01.2006 of Shri Pankaj Raman. It is finally submitted by the respondents that while issuing order under Section 7C of EPF and MP Act, 1952, the applicant neither applied his mind nor examined any records aand nd case history of the establishment. He is thus responsible for issuance of an order based on/influenced by the limited aspects as disputed by the
-8- OA/051/00030/2023 establishment in its petition dated 16.12.2009. Thus, according to the respondents the applicant had acted n negligently and inefficiently.
4. Heard the learned counsel for the parties and perused the materials on record carefully.
5. Learned counsel for the applicant submitted that the disciplinary proceeding initiated against the applicant is totally vague and is uncalled for. It is urged that procedure was not followed which is evident from the order dated 29.06.2021 (Annexure (Annexure-2)
2) whereby penalty was imposed against the applicant. The applicant referred to Annexure Annexure-2 2 in which it is mentioned that " Whereas the matter atter was placed before the Competent Authority who accepted the Inqauiry Report and on careful consideration of the Inquiry Report, nature and gravity of the charges, relevant facts of the case placed on record taken tentative view to accept the Inquiry Report Report and to impose "a cut in pension upon the Charged Official Shri Deepak Tigga, APFC (Retd.) at the rate of 30% for a period of 5 years" under Rule 9 of the CCS(Pension) Rules, 1972.
1972."" Learned counsel further submitted that there is no allegation of corr corruption uption against the applicant and referring to para 9 of Annexure Annexure-II II (Statement of Imputation of Misconduct or Misbehaviour) he submits that though the respondents have clearly mentioned about the fact that applicant failed to note such prejudicial and malafide mala action on the part of the Enforcement Officer Shri L.P. Gariban who had blatantly favoured the establishment, no action was taken against Shri L.P. Gariban
-9- OA/051/00030/2023 which shows biasness against the applicant. Learned counsel further claimed that no department departmental al proceeding can be conducted against the applicant who passed order as a quasi judicial authority. In support of this claim, he cited the judgment of Hon'ble Delhi High Court dated 17.10.2023 in the case of Alka Rajvanshi Jain Vs. Union of India and An Another in WP(C) No. 10191/2022 and CM. APPL. 29508/2022, particularly para 34 and 35 of the judgment.
6. Learned counsel for the respondents while reiterating the submissions as made in the written statement also submitted that as per various judicial pron pronouncements, ouncements, the scope of judicial review in departmental proceedings is very limited. He placed reliance on the judgment of Hon'ble Supreme Court as reported in (2015) 3 SCC 101 in the matter of General Manager (Operations) State Bank of India and Another Vs. R. Periyasamy in support of their case.
7. The core issue for adjudication in this matter is whether departmental proceeding can be initiated against a person who passed an order as a quasi quasi-judicial judicial authority. We have heard the counsels for both the ap applicant plicant as well as respondents at length and also gone through the available record before us.
8. In the judgment delivered by the Hon'ble Apex Court in Union of India Vs. K. K. Dhawan the following principle has been delineated with regard to initiation of disciplinary proceedings against an officer discharging quasi quasi-judicial/judicial judicial/judicial functions.
functions
-10- OA/051/00030/2023
9. The Apex Court has culled out the following eventualities when the government is not precluded to take disciplinary action against a judicial or quasi judicial officer, for violation of the conduct rules:-
rules:
"i.i. Where the Officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; ii. if there is prima facie material to show recklessness or misconduct in the discharge of his/her duty;
iii. if he/she has acted in a manner which is unbecoming of a government servant;
iv. if he/she had acted negligently or that he omitted prescribed conditions which are essential for the exercise of the statutory powers; v. if he/she he had acted in order to unduly favour a party; vi. if he/she had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago " though the bribe may be small, yet the fault is great"."
This will clearly mean that the misconduct misconduct or the negligence has to be interpreted as culpable negligence with emphasis on corruption or bribe that may have been the factor influencing the decision of the said quasi quasi-judicial judicial authority.
10. In the instant O.A. the statement of imputation of of misconduct or misbehavior in support of the article of charge framed against the applicant has laid out the whole sequence of events leading to this disciplinary proceeding against the applicant.
11. A quasi-judicial judicial proceeding under EPF & MP Act, 1952 in in respect of M/S Katihar Medical College, Katihar carrying code number BR/6351 was continuing since long. In this ongoing quasi--
judicial proceeding the applicant ((charged
charged officer in the
departmental proceeding
proceeding)) was entrusted with an inquiry u/s 7 C of the said Act while functioning as APFC at SRO Bhagalpur from
-11- OA/051/00030/2023 24.08.2009 to 16.11.2010. Prior to 24.08.2009 this matter was dealt with by other previous incumbents since the initiation of the proceedings under the said Act. On promotion of previous incumbent APFC Sri O. P. Dubey to the rank of RPFC, the proceedings were taken over by the applicant Sri Dipak Tigga, APFC.
12. The said imputation has clearly listed the various steps in this proceeding since 1995. Another officer E.O. Sri Gariban had submitted det detailed ailed report with regard to all the steps taken after 1995 that was placed before the applicant.
13. The main allegation against the applicant is that he failed to note the prejudicial and malafide action on the part of E.O. who had blatantly favoured the establishment, revealed his report to the establishment even before reporting to the office. The further allegation against the applicant is that he did not verify any basic & essential records and relying on such infructuous & motivated report of the E. E.O. O. concluded the proceedings. In continuation it is further mentioned that the E.O. neither verified books of accounts of the establishment nor any salary/wages registers and gave a clean chit to the establishment that there existed no evasion, without eve even n examining any of the basic record/ documents.
14. So, now the moot question before this tribunal is to decide as to what is the so called culpable negligence on the part of the applicant. In this imputation of the alleged misconduct the only charge agai against nst the applicant is that he relied on the report of E.O. Sri
-12- OA/051/00030/2023 Gariban and passed an order accordingly. There is nothing on record to prove that the applicant APFC Sri Tigga was to assume the role of E.O. and conduct the enquiry himself. It is also not clar clarified ified as to what were the issues that he ignored. How is the imputation in support of the article of charge proving that there was non non--
application of mind?
15. Additionally, there is nothing on record or the allegation that the applicant indulged in any ccorrupt orrupt practice or took bribe for taking this decision. There is no record or allegation before us to prove that any different order was passed at a later stage against the establishment that is Katihar Medical College. This means that no other authority aass per available records delved into this question and decided that on the same very facts before this quasi quasi-judicial judicial functionary (applicant) (applicant),, any other decision could be taken or has been taken taken.
16. In view of the discussions and observations made hereinabove hereinabove the OA is allowed. Accordingly, orders dated 29.06.2021 (Annexure -
2) and 20.04.2022 (Annexure (Annexure-3)
3) are quashed and set aside. The respondents are directed to refund the amount that has been deducted from the pension of the applicant by way of penalty wi with th statutory interest within a period of three months from the date of receipt of this order. No order as to cost.
Sd/- sd/-
[RAJVEER SINGH VERMA] [KUMAR RAJESH CHANDRA]
Judicial Member Administrative Member
Srk.