Central Administrative Tribunal - Kolkata
Swapan Kr Bankura vs Labour on 27 March, 2018
S 1 o.a. 1740.2016 CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTTA BENCH No. O.A. 1740 OF 2016 Date of order:
Present: Hon'ble Ms. Manjula Das, Judicial Member Hon'ble D. Nandita Chatterjee, Administrative Membe Sri Swapan Kumar Bankura, Son of Late Surapati Bankura, Aged about 55 years, Residing at 3, Ram Kumar Ganguly Lane, B. Garden; Shibpur, Howrah - 711103.
Applicant Vs. Union of India service through the Secretary, -
Ministry of Ladour & Employment, Rafi Marg, ShramShakti Bhawan, NewDelhi - 110 001.
TheChairmaritChairpers.on, Exeëutive Coinmittee, Central Board of Trustee, Emloyees Provident Fund Organization, Secretary (L & E) Appellate Authority, Head Office, Ministry of Labour & Employment, Rafi Mary, Shram Shakti Bhawan, New Delhi --110001.
The Central Provident Fund Commissioner, Vigilant eH e ad quarter, Employees' Provident Fund Organization, Minitry of Labpur & Employment, Government of India, 14, A hikaji Cama Place, New Delhi --110066.
AddI. Central Provident Fund Commissioner (WB, JH), EPFO, DK Block, Salt Lake City, Sector - II, Kolkata --700 091.
2 o.a. 1740,2016.
-li The Regional Provident Fund Commissioner Employees Provident Fund Organization1 D.K.BlOck, Salt Lake City, Sector - II, Kolkata - 700 091.
Regional P.F. Commissioner EPF•O, SRO, Durgapur, Red Cross Road, Durgapur.
Respondents Mr. S.K. Dutta, Counsel For the Applicant Mr. A. ChakrabOrtY, Counsel Mr. B. Chatter,iee, Counsel Mr. S. Banerlee, Counsel For the Respondents Per Dr. Nandita ChMte!iee'Adm1ni5t Y_M fh The instant apJicatiqn ha?. been filed under Section 19 of the Administrative TribuaI'Act, 'gs,eeking the following relief:-
no. Vig. XIV(6)10/86 dated 'i) Charge 4.9.2012 issued by The Cntral Provident Fund Commissioner, Vigilance Headquarter, Employees' Provident Fund Organization is not tenable in the eye of law and as such the same should be quashed;
Office i Order being no. Vig. XIV (06)1oNoI.111/2527 dated U) 02.11.2016 issued by the Chairman/Chairperson, Executive Committee, central Board of Trustee, Employees Provident Fund rganizahon/S?creta1y (L&E) is not tenable in the eye of law and as such the same should be quashed.
Office Order)eing No. Vig. XIV(06)10/V01. 111/1476 dated iU) 22.6.2016 issued by the Central Provident Fund Commissioner, Vigilance Headquarter, Employees' Provident Fund OrganiatiOn is not tenable in the eye oflàw and most importantly the order was issued in exercise of the power which ws not vested with the Appointing Athority but with the "Centr:'BOa1d" and as such the same should be quashed.' Grant all consequential benefits after quashing the, order of punishment.
Costsof and incidental to this application. Passsuch further or other order or orders."
3 o.a. 1740.2016 I Heard Ld. Couhsel for the applicant and respondents exariPined It.
well as orders of the Hon'ble Apex pleadings, documents on record as Court as cited by the Ld. Counsel for the applicant. The Employees' Provident Fund Staff (Classification Control & Appeal) Rules1 1971 (as amended upto 11 .12i1 993) was also examined in this context.
The submissioS of the applicant as canvassed by his Ld. Cdunsel, Ill.
are as follows:-
That, the applicant is working as the Assistant Provident Fund Commissioner, EPEO, SRO, Durgapur under the authorities of the respondent organisátion and that, on 4.9.2012, a disciplinary proceeding was initiated against the applicant, under Rule 10 of the EmØloyees' Provident Fund Staff (Classification Control & Appeal) Rules, 1971 on the following charges.
(a)The first charge was that during the period from 12.6.2007 to 7:7.2010, the applicant issued PF Code numbers to 19 contractor establishments without issuing orders for verification of documents before coverage/allotrflent:of PF Oode number Through pre-coverage irspection and without minimum verification of address particulars of these establishments in violation of Head Office directions communicated through letter dated 12.1.2005 reiterated with specific details !orexact documentation required f&'the said purpose by Regional Offic, Ranchi Circular dated 31:7.2008. It wal also alleged that the applicant did not insist on submission of post coverage inspection reports -from the Enforcement Officers. By covering the contractor establishmen5 without ensuring pre and post coverage inspections the applicant allowed 12 such contractor establishments to be non-complying establishments. 3
4 o.a. 1740.2016 the applicant was that during the The second chargé alleged against
(b) t issued PF Code numbers to ll period 12,6.2007 to 7.7.2010 the appican e /forged labour liceneS contractor establishm t5 on the basis of f Further, the applicant issued PF Code numbers to 23 c0ntfäcto1 establishments on the basis of a single work order submitted by the contractor establishments in violation of and in bypassing the HO guidelines issued on 12.1.2005 which had been reiterated with specific Ranchi dircular details for exact and minimum dqcumentation by RO, contractor establishments were ailoited PF o dated 31 .7.2008. MoreoVer, unknownIu n verifi b le Code nos. on the basis of fake/forged work orders of principal employer.
u nctioning as an Assistant Providnt Fund That the aplicant was f Commissioner (Compliance) at Regional Office Ranchi from 17.12.2008 to 7.7.2009 and that as per the inspector's Manual and circlar dated 31.7.2008 issue by RPFC. .Ranchi,. the Enforcement Officers EOs) who 4'' were the field officers, are to submit coverage proosal duly commending the coverage of establishments after vrifying the ç particulars mehtioned in the coverage proposal with documets submitted by new establishments and that, based on such recommenation5 of the concerned EO, PF code number is to be allotted/dnied to the establishments. That tIieapplicant used to approve the' proposal for coverage of !the establishment based on the recommendatins of the EOs and scrutiny: by the compliance section.
That in response to the charge memo dated 4.9.2012, the applicant had submitted a reply dated 24.9.2012 refuting the charges and pointing out his actual period of functioning as APFC (Compliance)(Annexure 'A-2"
S o.a. 1740.2016 to the O.A.) contradicted the period as noted in the memorandum of charges.
That, the Enquiry Officer conducted the enquiry and submifted his report on 9.7.2015 without properly analysing the evidence brought on record and the submissions of the applicant as contained in his :written brief (annexed as Annexure A-3 to the CA.) was ignored.
That, on 27.4.2016, the applicant submitted a representation against the enquiry report (Annexed as Annexure A-5 to the CA.) and that the disciplinary authority, without considering his submissions in a fair manner, passed a non-speaking order on 22.6.2016 imposing upon the applicant a major penalty of 'reduction of a lower stage of pay in the time scale tor two years without cumulative effect and without effecting increments" in exercise of powers vested under Rule 8(2) of the EPF Staff (CC&A) Rules, 1971.
That, it is the Cntral Board which is the competent authority'under Rule 8(2) of the EPFStaff(CC &A) Rules, 1971 and hence the discpIinary authority's order was passed without competence or authority annexed as (Annexure A-6 to theO.A).
Thereafter, the applicant preferred an appeal which was reje9ted by the appellate authoriyon 2.11.2016 (Annexed as Annexure "A-7Hlo the O,A.).
That, the applicant is notuilty of any misconduct as becaUse the applicant was followkg the guidelines of the respondent authorities and hence cannot be victimised on grounds of systematic deficincies. Accordingly, being agrieved, the instant application has been filed. IV. Per contra, thd Ld. Counsel for the respondents has argued jthat at no point of time was,:: the applicant denied natural justice as because he S Hf I 6 oa. 1740.2016 /1 was given enough oportunitie5 to respond to the chargememorafldum. He had the right to cll for any witness in his support during the enquiry the proceedings and that: he failed to do so. It was also argued that it duty of the appIican, who is the final authority for allotment ofl code number, to ensure tht all eligibility criteria are fulfilled before allotent of code number to any establishment.
The respondents have, however, admitted that there were typographical mistakes whereby [he year of his tenure was erroneously typed as 2010 instead of 2009 in the chargememo.
That, the guidelines do not debar the applicant from conduting a pre-coverage inspebtion and that guidelines were issued for eisuring verification of records before issuance of code numbers specifically to the contractor establishment. The applicant failed to implement such guidelines.
That the cometénce of the disciplinary authority were authorised by Rule 7 of the EPF (OCA) Rules and that there was a typographical, error in quoting the rule as (2) instead of 8(3) of the said Rules.
ISSUES The issue that requires to be decided upon in the context of V. adjudication of the instant application is whether the digciplinary ductedàgainst the applicant suffer from such ihfirrnities proceedings as con so as to make the proceedings-15ad in law which call for judicial reiew.
FINDINGS VI. The following is deciphered from the oral submissions, pleadings and documents on record:
Disciplinary proceedings was initiated under Rule 10 of the
(i) Employees Provident Fund Staff (Classification Control &
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7 o.a. 1740.2018 Appeal) Rules, 1971 vide charge memorandum No. Vig. XIV (6) 10/86 dated 4.9.2012 alleging:
(a)That during the period from 12.6.2007 to 7.7.2010 the applicant issued PF Code numbers to 19 contractor establishments without issuing orders for verificatiOi) of documents before coverage/al1otmt of PF Code number
-coverage inspection and without minimum through p re verification of address particulars of these establishments, in violation of Head Office directions communicated through letter dated 12.1.2005 reiterated with directions for specific details or exact documentation required for the said purpose by Regional Offices'. (Ranchi) Circular dated 31.7.2008. That the applicant did not insist on and ensure the submissiofi of post coverage inspection reports from the Enforcement Officers and thereby allowed 12 such contractor 0n -complying establishments.
establishments to be The second charge alleged against the applicant was
(b) that during the period 12.6.2007 to 7.7.2010, the applicant issued PF Code numbers to ii contractor establishments on the basis of fake/forged labour licenses and that the applicant issued PF O&de numbers to 23 contractor establishments on the basis of a sigle work order submitted by the contractor establishments in violation of and in bypassing the HO guidelines issued on 12.1.2005 which had been reiterated with specific details for exact and minimum documentation by RO, Ranchi Circular dated 31.7.2008. Further, 09 contractor establishments were aflotted PF Code nos. on the basis of
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8 o.a.1740.2b1 fake/forgd work orders of unkhown/unverifiable pincipaI employer.
(H) The chare memo did not contain any list of witnesses. (Hi) It is adñiitted by the respondents that the tenure bf the applicant has been wrongly incorporated in the charge memo. No attempt, however, was made by the respondents to ameid the charge memo although, as held in Braja Kishore DaS v. Sthte of Orissa, AIR 195 Ori 183 (DB), amendment of a charge is merely a matter of probedure and so long as ample notice of such amendment orH alteration . is given and adequate opportunity for defence is affored, the proceedings will not be vitiated.
(iv) Contrary to the principles of natural justice, the applicants defence, althouh noted, has not been discussed or examired in depth in the odcer of the disciplinary authority. This violateJ Rule 11(2-A) of iheEPF Staff (CC &A) Rules, 1971 which is q Lioted hereunder:-
(2-A) The Disciplinary Authority shall consider the representation, if any, submitted y the employee and record its findings before proceeding furthr in the-rnätteras specified in sub-rules (3) andl(4),' V. The SchJdule attached to the EPF (CC.& A); 1971 is reerred to in this regatd and the following is noted with respect to the disciplinary authrity of the APFC.8
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9 o.a. 1740.2016
Description of Sent/ce Appointing Authority corn pétent to
S.
Authority impose penalties &I
No.
vide Rule 5 Penalties which it may
impose (with reference to
item numbers in Rule 7 & 8
Autliorily Penalties
GROUP 'A' CPFC CPFC I All(Bothj
IV.
- Addl.CPFC minor &
- Director (Vig.) major)
- Law Qfficer
- Suprintending
Engioeer
- RPFq (Gr. I)
- RPF (Gr. II)
- Dy. Director
(Vigilance)
- Dy. Director
(Training)
- Sehior Admn.
Officer (NATRSS)
- Sehior Analyst
-APEC . H
Rule 8(2) ,of the said Rules states as follows:
"8(2) 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).of the said Rules states as follows:-
'8(3) without prejudice to the provisions of Sub-Rulef(1) and (2), the appointing authority or authority specified in the Schedule to this rule, may impose any of the penalties specified in Rule 7 on any employee to the extent specified in the Schedule."
The conàluding paragraph of the disciplinary authority's order dated 22.6.2016 (Anñexure as A-6 to the O.A.) reads as under
"Now, THEREFORE, the tthdersigned being the Disciplinary Authority in exercise of the powers vested under Rule 8(2) of the EPE Staff (CCA) Rules, 1971 has come to the cnsidered view to impose]a penalty of "reduction to a lower stage of pay in the time scale for two years without cumulative eff?ct and without affecting increment?.upon Sh. S.K. Bankura, APFC and orders accordingly.
(Dr. V.P. Joy) Central Provident Fund Comn4issioner"9
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10 o.a. 1740.20161 It is a settled principle of law that the entire procedure for initiating and concluding disciplinary proceedings is generally governed by rules having statutory force.
In Punjab National Bank v. Kunj Behari Misra reported in (1998) 7 SCC 84 it has been held as under:-
"In departmental proceedings what is of ultimate importance:: is the findings of the disciplinary authority. As such when the enquiry is conducted by the Inquiry Officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded with the f the enquiry. The disciplinary proceedings stand completion o concluded with the decision of the Disciplinary Authority."
It has also been held in Yoginath D. Bagde v. State of Maharashtra reported in (1999) 7 5CC 739 that departmental proc'pedings are not concluded on the submission of the enquiry report. They come to an end only when the disciplinary authority on consideration of the report either exonerates o imposes punishment on.the delinquent.
Hence, the first task is to ide(ify who is the disciplinary authority in relation to the concerned public servant. This is important because almost all the rules contemplate initiation of the departmental proceedings on the satisfaction of the disciplinary authority and the punishment to be imposed is also a matter of'discretiofl of the disciplinary authority. The Rules very ,.
•! often provide a schedule which indicates who is the disciplinary authority in I relation to the several posts in the organisation. Competent autho(ity would generally mean the appointing authority or an authority equivalent' to or co- ordinate in rank with the appointing airthoritias observed in Krishna Kumar v. Divisional Assistant Electrical Engineer AIR 1979 SQ 1912.
In Indian Afrlines Ltd. v. Prabha D. Kanan, (2006) 11 SOC 67 it has been held that, "If the entire Board is the appropriate authority for 11 o.a. 1740.2016 / taking a decision, it is only that authority which was required to take decision and not any other,' It has been held in B.C. Chaturvedi v. Union of India & ors. reported in 1996 SCC (L&S) 80 as under:-
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusioh. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive poer to reappreciate the evidence or the nature of punishmeni. The court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it apprdfriate to the facts of that case."
VII. The Ld. Counsel for the aiicant, in his support, has furnished three decisions of the Hon'ble Apex Court as follows:-
(a) 1993 5CC (L&S) 318 Union of India & ors. v. R.K. Desai wherein it has been held as under:-
7. it seems difficult beyond dispute, and is not in fact disputed before us, that it is not as if an officer belong to the Central Civil Service is totally immune from disciplinary proceedings wherever he discharges quasi-judicial or judicial functions. 1 T7 12
o.a. 1740.201 /
4. XxxxxxXxXXXXXX e he gives a judicial or quasi-judicial decision Merely b epaus which is efloneous or even palpably erroneous no disiêiplinary proceedins would lie."
Roop Singh Negi v. Punjab National Bank & ors. reported
(b) in (2009) 2 SCC570, wherein the Hon'ble Court has observed-
addued on "44 ........................................The evidence behalf of the management must have nexus with the 4harges. The enqufty officer cannot base his findings on mere hyothesi5 Mere ipse kiixit on his part cannot be a substitute of evidence."
(c) The ratio deidendi in Union of India & ors. v. J. Ahmed eported in AIR 1979 SC 1022 has also been referred to:-
There followed the usual search for a scapegoat and the respondert came handy. Some charged were framed inone of which could contitute misconduct in law."
VIII. It has also been held in Chairman, LIC of India v. A. Masi!amani, 2012 (8)Supreme today 224 (SC); that it is a settled legal prpostion, that once the Court sets aside an order of punishment on the grqund that the erquiry was not properly conducted it must remit the concerqëd case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same.
The disciplinary .uthority's order is void ab initio as because the disciplinary authority, namely, the CPFC, was not empowered under Rule 8(2) of the EPF (CC & A) Rules, 1971. Such an error cannot be trivially argued as a mere typographicAlerror as recorded in the pleadings.
Hence, we conclude that the disciplinar.yauthority had erroneously passed his orders toncluding the disciplinary proceedings. The disciplinary authority acted beond the authority that was delegated to him under EFF Staff (CC & A) Rules, 1971 and hence the entire order of diciphnary authority deserves, to be set aside. Since, however, the order is being 12 *
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.1 13 o.a. 1740.2016 quashed on technical grounds, based on the settled legal PIOPO?ition that F! once the Court sets aside the order of punishment on the ground that the enquiry was not roperly conducted, we remit the case back to the disciplinary authoriti to conduct the proceedings from the point wFerefrom ' 1 it stood vitiated andtto conclude the same.
Hence, we st aside the order of the disciplinary authority 'and we remand it back to. !the disciplinary authority to initiate the procedings airesh and in accordance with rules.
X.The O.A. is heeby allowed to the extent of the above decision;
Parties will bear their respective costs.
L21 ....
(Dr. Nandita Chatterjee) (Manjula Das) I
Administrative Member Judicial Mernhe.r
sP
I II
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