Central Administrative Tribunal - Chandigarh
Shri S.K. Khanna Son Of Shri Yash Pal ... vs Union Of India Through The Secretary on 19 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.175-CH-2012 Order reserved on: 19.12.2012 Order pronounced on: 22.01.2013 CORAM : HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J) HONBLE MR. RANBIR SINGH, MEMBER (A) Shri S.K. Khanna son of Shri Yash Pal Khanna, aged 59 years, Additional Central Provident Commissioner, O/O Additional Central Provident Fund Commissioner, Punjab & Himachal Pradesh, Chandigarh. . Applicant Versus 1.Union of India through the Secretary, Government of India, Ministry of Labour, New Delhi. 2.Central Board of Trustees, Employees Provident Fund Organisation (Ministry of Labour, Govt. of India), Head Office, Bhavishya Nidhi Bhawan, 14-Bhikaji Cama Place, New Delhi-110066 though its Chairman 3.Employees Provident Fund Organisation (Ministry of Labour, Govt. of India), Head Office, Bhavishya Nidhi Bhawan, 14-Bhikaji Cama Place, New Delhi-110066 though its Provident Fund Commissioner 4.Regional Provident Fund Commissioner, Employees Provident Fund Organisation (Ministry of Labour, Govt. of India), Head Office, Bhavishya Nidhi Bhawan, 14-Bhikaji Cama Place, New Delhi-110066. Present : Mr. V.K. Sharma, Advocate for applicant Mr. Deepak Agnihotri, Advocate for respondents. O R D E R
HONBLE RANBIR SINGH , MEMBER (A) This O.A. has been filed against Memorandum No.C-11025/17/2006-SS-I dated 20.12.2011 (Annexure A-1), whereby a charge-sheet has been issued against the applicant under Rule 10 of EPF Staff (CCA) Rules, 1971, directing him to submit a reply to the same, within 10 days of the receipt thereof. The written statement of his defence should also state whether he desires to be heard in person. He was also informed that an enquiry will be held only in respect of those articles of charges which are not admitted. Along with Memorandum, Articles of charges containing two articles, a statement of imputation of misconduct or misbehavior; list of documents and list of witnesses have been issued.
2. The relief sought in this O.A. is as follows :
Quash the Memorandum dated 20.12.2011, Annexure A-1, vide which the respondents have levelled two sets of allegations with regard to a misconduct having taken place during 1997 to 2000, which cannot be sustained in the eyes of law.
3. The charge sheet relates to the period when the applicant was posted as RPFC-I Kolkatta from 1.8.1997 through 6.8.2000 and as Officer-in-Incharge at ZTI Kolkata from 7.8.1997 to 6.8.2000. An FIR was registered against the applicant by the CBI on 12.1.2009 under the provisions of Prevention of Corruption Act, 1988 and Indian Penal Code and a Closure Report was submitted on 31.3.2010 by the CBI in the Court of Special Judge, CBI, New Delhi. On 12.8.2011 the Special Judge, CBI, New Delhi had accepted the closure report in which it was stated that the applicant had misconducted and abused his official position as he had recommended purchase of books from a Publishing House where his wife was a Director. But at the same time, the irregularity did not lead to an inference that any criminal motive or unlawful gain or dishonest intention was entertained by the accused. Misconduct did not call for initiation of criminal proceedings against the applicant. The impugned charge-sheet (Annexure A-1) has been issued after the acceptance of the closure report.
4. It has been contended in the O.A. by the applicant that he had been appointed on the present post vide office order dated 25.9.2008 by the competent authority of the Employees Provident Fund Organization. It is only the Central Board of the Employee Provident Fund Organisation which is competent to appoint officers/employees in the Employees Provident Fund Organization. Rule 7 and 9 of the Employees Provident Fund Staff (Classification, Control & Appeal) Rules, 971 provide as follows :-
8. DISCIPLINARY AUTHORITIES:- (1) The Central Government may impose any of the penalties specified in rule 7 on an employee.
(1)The Central Board may impose any of the penalties specified in rule 7 on any employee for whom the Central Board is the appointing authority under section 5(D)(3) of the Act.
Rule 8(3) Without prejudice to the provisions of sub rules (1) and (2) any of the penalties specified in Rule 7 may be imposed on any employee by (i) the appointing authority (ii) Authority specified in the Schedule to the Rule or (iii) by any other authority empowered in this behalf by general or special order of the Central Board of Trustees or the Central Government as the case may be.
Explanation:- Where an employee holding lower post is promoted, whether on probation or temporarily, to a higher post, he shall be deemed for the purpose of this rule as holder of the higher post.
9. Authority to Institute Proceedings:-
(1) The Central Government may Rule 9 (1) The Chairman, Central Board of Trustees or the Central Govt. as the case may be, may (i) institute disciplinary proceedings against any employee; (ii) Direct disciplinary authority to institute disciplinary proceedings against any employee on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in Rule 7.
(2) The Central Board may a. Institute disciplinary proceedings against any employee for whom it is the appointing authority under sub section 3 of Section 5(D) of the act;
b. Direct disciplinary Authority to institute disciplinary against any employee to whom the Central Board is the appointing authority provided that such authority is competent to impose any of the penalties on that employee under rule 7.
(3) Without prejudice to the generality of the provisions of sub rule (2), a disciplinary authority competent under those rules to impose any of the penalties specified in clauses (i)to (iv) or rule 7 may institute disciplinary proceedings against an employee for imposition of any of the penalties specified in clauses (v) to (ix) of rules 7 notwithstanding that such disciplinary authority is not competent under those rules to impose any of the latter penalties.
5. It is stated by the applicant that it is the disciplinary authority, competent in these rules, who may institute disciplinary proceedings against an employee. Schedule to the said rules provides that in case of an officer of the rank of Additional CPFC, the Appointing Authority shall be the Chairman of CBT. The authority competent to impose all penalties, minor and major is the Chairman and the Appellate Authority vide Rule 20 is the Central Government. Therefore, the Central Government is not competent to initiate Disciplinary proceedings against the applicant.
6. The grounds for relief with legal provisions taken in the O.A. are as follows :-
(i)Charge sheet is not sustainable in the eyes of law as the same has not been issued by the competent authority as detailed in para 4 (xiv) to (xviii) above and as such liable to be quashed.
(ii)The charge sheet is not sustainable in the eyes of law as violation of the CCS (Conduct) Rules and the General Financial Rules, 2005 has been alleged and these rules have been made applicable in view of the provisions of Regulation 22 of the 2008 Regulations. Those Regulations have been made applicable to the officers/officials of the EPF from 25.9.2008 and it is also clear from the Agenda Item placed before the Central Board & approved also that the FR&SR and CCS (Conduct) Rules, 1964 were not applicable to the employees of the EPFO before 25.9.2008 and any omission / Commission by an employee during the period between 28.11.1963 and 25.9.2008 in so far as they relate to the provision of the GFR & the CCS (Conduct) Service, 1964, could not be treated as misconduct because these Regulations were not applicable to the employees of the EPFO. Thus, the impugned charge sheet stands vitiated.
(iii)The 2008 regulations itself are not applicable as Section 5D (7)(a) of the EPF & the MP Act, 1952 provides that the method of recruitment, salary & allowances, discipline and other conditions of service of the Additional Central Provident Fund Commissioner shall be such as may be specified by the Central Board. The Central Board has never considered the Regulations what to talk of making the said Regulations. Thus the 2008 Regulations will not be applicable to the staff of the Provident Fund Organization in general and the applicant in particular. Once the 2008 regulations are not applicable, then the Central Govt. employees Rules as made applicable by Regulation 22 of the 2008 regulations will not be applicable and the alleged violation of the said rules, if any, cannot be faulted by the respondents.
(iv)The said regulations have been notified, without approval by the Board. Therefore, notification in that regard itself is void ab initio.
(v)The delay in initiating disciplinary proceedings against a Govt. servant causes prejudice to the charged officer unless it can be shown that the delay is attributable to the delinquent official. In the present case, the alleged charges relate to the period 1997-2000 and the charge-sheet has been issued after a period of more than 12 years without there being any explanation for issuing the charge-sheet after such a long time.
(vi)The applicant was also involved in the criminal case registered by the CBI and after investigation, the CBI filed the closure report as nothing incriminating was found against the applicant and the court of Special Judge accepted the closure report with reasons and dropped the case against the applicant. It is on the same charges and with the same set of evidence, the charge sheet has been issued against the applicant after the closure of the criminal case registered against the applicant which is nothing else but to harass the applicant.
(vii)The charge sheet is illegal, arbitrary, discriminatory, harsh, violative of articles 14 and 16 of the Constitution more so when the applicant is due to retire on 31.12.2012.
7. The respondents have filed a common written statement. It is stated that Rule 8 of the EPF Staff (CCA) Rules, 1971, provides that the Central Government may impose any of the penalties specified in rule 7 on an employee. Similarly rule 9 of aforesaid rule provides that the Central Government may institute disciplinary proceedings against any employee.
8. It has been stated by the respondents that as per rule 18 of EPF Staff (CCA) Rules, 1971, no appeal shall lie against any order passed by the Central Government. The applicants contention of losing a right of appeal is natural course of law adopted in the EPFO. Moreover, it is highly premature for the applicant to raise this issue at this stage when he has not yet submitted his written statement of defence to the disciplinary authority which he was required to do on or before 2.2.2012.
9. The applicant has filed a rejoinder in which he has reiterated the averments that the Central Government was not competent to issue charge sheet to him. The Central Government seems to be tacitly agreeing with the contentions of the applicant, because a charge sheet has been issued on 11.6. to Sh. P. Sudhakar Babu, Additional Central Provident Fund commissioner, who is also of the rank of the applicant, by the CBI. The disciplinary authority is not bound to abide by the recommendations of the CVC. The Disciplinary Authority cannot initiate disciplinary proceedings on the same set of facts and on the same set of evidence in a case where the CBI has filed a closure report. The applicant has disputed the allegations in charge-sheet. The validity/applicability of the CCS (Conduct) Rules, 1964 and the EPF (Staff & Conditions of Service) Regulations, 2005 is disputed in the rejoinder also. It is stated that the FR&SR & the CCS (Pension) Rules, 1972, are not applicable to the employees of the EPFO. The rules have been illegally adopted vide notification of 2008. The rules and regulations framed by the Executive Committee do not derive any legal force because the powers to frame rules under section 5 (d)(7) have been vested in the Central Board. No power can be delegated to the Executive Committee for amending EPF (Staff & Conditions of Service) Regulations, 1962, which is constituted under section 5 (AA) of the EPF & M.P. Act, 1952 to assist the Central Board of Trustees. The respondents version in the charge sheet and submissions made in the reply statement are contradictory. As per schedule attached with the Staff Rules, the Disciplinary and Appointing Authority for the post of Assistant EPC is the Chairman, CBT and not the Central Government by whom the said charge sheet has been issued to the applicant. The appeal against the order passed by the Central Government as per rule 18 of the EPF Staff (CCS) Rules, 1971 does not lie to the officers of the EPFO. Hence the applicant has been deprived of the right of filing of an appeal against the order issued by the disciplinary authority on conclusion of the disciplinary proceedings. The other contentions made in the O.A have been reiterated in the rejoinder.
10. we have heard the learned counsel for the parties and perused the pleadings.
11. The impugned charge-sheet dated 20th December, 2011 has been issued under rule 10 of the EPF Staff (CCA) Rules, 1971 for violation of rule 20 of Central Civil Services Conduct Rules, 1964, which have been found to be applicable to he employees of the EPFO in terms of regulation 22 of EPF Officers & Employees Conditions of Service Regulations, 2008. Rule 8 of the Employees Provident Fund Staff (Classification, Control & Appeal) Rules, 1971 pertains to disciplinary authorities which states that the Central Government may impose any of the penalties specified in rule 7 on an employee. Rule 7 is the list of penalties which may be imposed on an employee. Rule 9 pertains to the authorities competent to institute proceedings which provides that the Central Government may institute disciplinary proceedings against any employee or direct the disciplinary proceedings to institute disciplinary proceedings against any employee. Similarly, the Central Trustees Board has also been empowered to institute disciplinary proceedings and to direct the disciplinary authority to institute any disciplinary action. The rules contain a schedule in terms of rule 7. In the schedule, the appointing authority, authority competent to impose penalties and the appellate authority have been listed out in respect of various employees. In respect of Additional CPFC, the Chairman CBT has been stated to be appointing authority, and the authority competent to impose penalties, both minor and major, and the central government have been stated to be appellate authorities. These provisions do not invalidate the independent provisions of rule 8 and 9 noted above authorizing the Central Government to institute disciplinary proceeding and impose any penalty specified in Rule 7 on an employee.
12. The learned counsel for the applicant has referred to section 5 (AA) and 5 (D) (iii) of the Employees Provident Fund & Miscellaneous Provisions Act, 1952. Referring to the above said provision, the learned counsel has drawn our attention to office order No.HRM-1/A-11(1)2007 dated 25th September, 2008 whereby the applicant was promoted to the post of Additional Central Provident fund commissioner. The order was issued by the Employees Provident Fund Organization. The learned counsel for the applicant insists that since he was promoted to the post of Additional Central Provident Fund Commissioner by the competent authority of the Employees Provident Fund Organization, the disciplinary proceedings cannot be initiated by the Central Government. However, in view of the clear cut provisions of the Employees Provident Fund Staff (Classification, Control & Appeal) Rules, 2005, empowering the Central Government to perform the functions of the disciplinary authority and the authority competent to institute proceedings, the above stated contentions of the learned counsel for the applicant are not acceptable.
13. The learned counsel for the applicant contends that if the disciplinary proceedings are initiated and penalty imposed by the Central Government then, he would have no right to appeal. No doubt, rule 18 of the Employees Provident Fund Staff (Classification, Control & Appeal) Rules, 1971, provides that no appeal shall lie against any order made by the Central Government, rule 25 provides for revision and rule 25 (a) provides for review. In any case, this O.A. is pre-mature and it is possible that the Central Government may after receiving reply of the delinquent allow the authorities specified in the Schedule to the Employees Provident Fund Staff (Classification, Control & Appeal) Rules, 1971 to take further action in the matter.
14. The learned counsel for the applicant has referred to 2006 SCC (L&S) 1121, G.M. Tank Vs. State of Gujarat & Others, where the departmental enquiry and criminal proceedings are based on the same set of facts, charges, evidence and witnesses finding to the contrary recorded in the disciplinary proceeding was held to be unjust, unfair and oppressive. We find no substance in this argument. The facts and circumstances of the instant case are different. In G.M. Tanks case (supra) criminal proceedings and departmental enquiry, both were held. In the instant case the Special Judge, CBI, New Delhi had accepted the closure report. It was only thereafter that the departmental enquiry has been initiated by issuing charge-sheet vide impugned order dated 20th December, 2011.
15. The learned counsel for the applicant has also relied upon 2008 (1) SCC (L&S) 1053 (Union of India & Ors. Vs. Naman Singh Shekhawat). In that case departmental enquiry was initiated after acquittal in a criminal case. However, in the instant case, there is no acquittal but only acceptance of closure report.
16. Regarding time taken in the matter as noted above, the charge-sheet was issued after the acceptance of the closure report on 12.8.2011. From the facts on record it appears that the respondents did not feel the need for disciplinary action in view of the investigation in the criminal case. The CBI had in the Closure Report cited the ground of insufficient evidence to substantiate the allegations. The Special Judge in his order dated 12.8.2011 found that apparently it looked that the applicant had mis-conducted and abused his official position as he had recommended purchase of books from a Publishing House where his wife was a Director. At the same time, the irregularity did not lead to an inference that any criminal motive or unlawful gain or dishonest intention was entertained by him. The mis-conduct did not call for initiation of criminal proceedings. It appears that the respondent initiated departmental action in that background. We do not find anything unjust, un-reasonable, wholly unfair, arbitrary or perverse in this action. The applicant is free to present his case in reply to the charge-sheet which we hope and trust, the respondents would consider fairly.
17. In his reply the applicant is free to raise the ground of non-application of Regulations particularly non-application of the FR&SR and the CCS (Conduct) Rules, 1964 to the employees of the EPFO before 25.9.2008.
18. Accordingly, we find the O.A. to be pre-mature and not fit for adjudication by this Tribunal. In view of the facts and circumstances of the case, the applicant is permitted to submit his reply to the impugned order namely Memorandum No.C-11025/17/2005-SS-I dated 20.12.2011 (Annexure A-1) to the Government of India, Ministry of Labour & Employment, by 15th February, 2013 and after that date the respondents are at liberty to take further action in the matter as per the law/rules.
19. This O.A. is disposed of accordingly.
20. No costs.
(RANBIR SINGH) MEMBER(A) (JUSTICE S.D. ANAND) MEMBER (J) Place: Chandigarh Dated: 22.01.2013 HC*