Karnataka High Court
G Nijaguna vs The Central Provident Fund ... on 22 November, 2013
Bench: Mohan.M.Shantanagoudar, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
nd
DATED THIS THE 22 DAY OF NOVEMBER, 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
WRIT PETITION NO.23616 OF 2010 (S-CAT)
BETWEEN :
G. Nijaguna
Aged about 52 years
S/o late Gurumurthy
Residing at No.257
First Floor, I-C Main
West of Chord Road II Stage
Mahalakshmipuram
Bangalore-560 086. ..Petitioner
(By Sri S.M. Babu, Adv.,)
AND :
1. The Central Provident Fund
Commissioner
Ministry of Labour
Government of India
No.14, Bhikkaji Gama Place
New Delhi-110 066.
2. Additional Central Provident
Fund Commissioner, E.P.P.O.,
(South Zone), Ministry of Labour
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Government of India
3-4-763, Barkatpura
Hyderabad-560 027.
3. The Regional Provident Fund
Coimmissioner-I, Karnataka
13, Raja Ram Mohan Roy Road
Bangalore-560025. ..Respondents
(By Sri Harikrishna S. Holla, Adv., for R1 & R2;
R3 served)
This writ petition is filed under Articles 226 & 227 of
the Constitution of India praying to quash Annexure-A in
No.O.A.No.140/2008 dated 28.6.2010 passed by the CAT.,
Bangalore and allow the application filed by the petitioner
as prayed for.
This writ petition coming on for hearing, this day,
MOHAN .M. SHANTANAGOUDAR, J., made the
following:-
ORDER
Being aggrieved by the order passed by the Central Administrative Tribunal in O.A.No.140/2008, this writ petition is preferred.
2. With an allegation that the petitioner along with his wife and Mr. Vijayakumar entered the official residence of the then Provident Fund Commissioner Mr. Mandal and disturbed his peace during holiday -3- i.e., on 16.9.1989, a charge memo was issued against the petitioner and said Vijayakumar in the year 1994. The petitioner and Mr. Vijayakumar denied the charge. Enquiry was held. The Enquiry Officer held that the charge is proved against the petitioner as also against Vijayakumar. Since Vijayakumar was in higher cadre than the petitioner, Disciplinary Authorities for the petitioner and Vijayakumar are different. The Disciplinary Authority in so far as Vijayakumar is concerned, imposed penalty of reduction of one increment without cumulative effect. However, the petitioner was imposed with the penalty of compulsory retirement by his Disciplinary Authority. Petitioner approached the Appellate Authority by filing a statutory appeal. The Appellate Authority modified the penalty of petitioner to that of reduction in rank, which means that the petitioner is now reduced in rank from Upper Division Clerk to Lower Division Clerk. Questioning the orders passed by the -4- Disciplinary Authority and the Appellate Authority, petitioner approached the Central Administrative Tribunal, Bangalore in O.A.No.140/2008.
3. The Tribunal confirmed the order passed by the Appellate Authority, by the impugned order. While concluding so, the Tribunal strangely and arbitrarily directed to reopen the matter against Mr. Vijayakumar also. Being aggrieved by the order passed by the Central Administrative Tribunal, this writ petition is filed.
4. The charge levelled against the petitioner reads thus:-
"Article I: Shri B.S.Vijaykumar and Shri G.Nijaguna while functioning as Head Clerk and Upper Division Clerk respectively in the office of the Regional Provident Fund Commissioner, Bangalore have on 16.9.1989 (a closed holiday) at about 12.30 P.M. entered the residence of the Regional Provident Fund -5- Commissioner at BTM Layout, Bangalore without proper permission and demanded discussion of an official matter relating to Shri G.Nijaguna. They brought along with them a lady identifying her as the wife of Shri G.Nijaguna and misbehaved in a unruly manner and thereby created an unpleasant scene disturbing the peace and tranquility, in spite of the Regional Provident Fund Commissioner's advice that the residential quarter is not an appropriate place to discuss the official issues and that Shri G.Nijaguna should reply to the memo issued to him.
Thus, the said Shri B.S.Vijayakumar and Shri G.Nijaguna have contravened the provisions of Rule 3(1) of C.C.S.(Conduct) Rules, 1964 read with Regulation 27 of the Employees Provident Fund (Staff and Conditions of Service) Regulations 1962 inasmuch as failure to maintain absolute devotion to duty and integrity and acted in a manner unbecoming of the officials of the Employees Provident Fund Organisation."-6-
5. Copy of the enquiry report is produced along with the writ petition. During the course of enquiry Mr. Mandal, the Regional Provident Fund Commissioner to whose residence the petitioner and Vijayakumar went along with petitioner's wife, has deposed in support of the charge. So also one Nagaiah, and others have deposed. The important witness according to us, is Mr. Mandal himself. His deposition before the Enquiry Officer reveals that the incident took place on 16.9.1989 at his official quarters at BTM Layout and it was a holiday. He has further deposed that the incident was an unpleasant one; Mr. Vijayakumar and Mr. Nijaguna (petitioner) came along with a lady who was stated to be the wife of Mr. Nijaguna (petitioner) to his official residence on 16.9.1989 in order to discuss on a memo issued by him to the petitioner; the said memo was issued to the petitioner on the basis of a complaint received against the petitioner regarding his family matters. -7- Mr. Vijayakumar requested Mr. Mandal to listen and discuss about the memo and he continued his request; Mr. Mandal declined to listen to Vijayakumar as it was an official matter; Mr. Vijayakumar persisted Mr. Mandal to listen to him by raising his voice and by talking loudly; Mr. Mandal declined to listen to him and asked them to go out of his house as he was busy in connection with ensuing Regional Provident Fund Commissioners' Conference. Mr. Mandal has further deposed that the act of the officials in arguing loudly definitely amounted to misbehavour. Mr. Mandal identified Vijayakumar as well as Nijaguna (petitioner herein) during the course of evidence. He admitted that the lady was introduced to him as Nijaguna's wife (petitioner's wife). He also deposed that Vijayakumar requested him to discuss about the memo issued to the petitioner by Mr. Mandal in connection with the allegations made against him relating to petitioner's family matter. It was further deposed by Mr. Mandal -8- that Vijayakumar raised his voice and compelled him to discuss the said matter in his residence only. Based on this material, the proceedings are initiated and said material has come during the course of enquiry.
6. Mr. Mandal himself has deposed about the incident in question. Even admitting the entire matter as stated by Mr. Mandal as true, we find that the penalty imposed by the Disciplinary Authority reducing the rank of the petitioner is highly arbitrary and oppressive.
It is no doubt true that the petitioner and Vijayakumar should not have gone to the residence of Mr. Mandal to discuss about the memo issued to the petitioner. The said memo was not issued by Mr. Mandal with an allegation that the petitioner has misused his official post and misappropriated the amount, etc. The allegation found against the -9- petitioner in the memo was not relating to any sort of moral turpitude, on the other hand, the memo came to be issued based on the complaint lodged by the brother of the petitioner's wife against the petitioner to the effect that the petitioner was not looking after his wife properly. In that regard, the petitioner must have gone to the residence of Mr. Mandal along with his wife, who had issued memo in order to satisfy Mr. Mandal that he is looking after his wife properly and they are living happily. Though the petitioner should not have gone to the official residence of Mr. Mandal in connection with the memo and in that regard, though the petitioner has committed certain amount of misconduct, in our considered opinion, the imposition of penalty by the Disciplinary Authority as well as the Appellate Authority of reduction in rank is too harsh under the facts and circumstances of the case.
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7. The allegation found against Vijayakumar is similar to the allegation found against the petitioner. Common charge is framed against the petitioner as well as Vijayakumar. Enquiry is held jointly. However, the Disciplinary Authority has chosen to stop one increment without cumulative effect in so far as Vijayakumar is concerned. But strangely, based on the very material, the Appellate Authority has imposed penalty of reduction in rank against the petitioner.
8. As has been held by the Apex Court in the case of Administrator, Union Territory of Dadra & Nagar Haveli vs. Gulabhia M.Lad, reported in 2010 AIR SCW 3785 and in the case of Shipping Corporation of India Ltd., vs. Bharat Earth Movers Ltd. & another, reported in (2008)2 SCC 79, the similarly situated delinquent officers should be dealt with similarly and if the charges against them are similar, it is desirable that they should be dealt with similarly.
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In the matter on hand, as aforementioned, common charge is framed against both the officials. It was Vijayakumar, infact, had raised his voice. On the other hand, Mr. Mandal has not deposed anything against the petitioner relating to raising of voice, etc. The only fault committed by the petitioner is that he had gone to the residence of Mr. Mandal along with his wife and Mr. Vijayakumar to plead his case. In this view of the matter, interest of justice will be met if the petitioner is also imposed with same penalty as is imposed against Vijayakumar.
9. The Tribunal while passing the impugned order has fallen in error in narrating the facts which are not on correct. It is not the case of any of the person including Mr. Mandal that either the petitioner or Vijayakumar assaulted him. But strangely, the Tribunal has proceeded to observe in paragraph-3 of the impugned order that Mr. Mandal was assaulted by the petitioner and Vijayakumar. Such observation is
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patently erroneous. The Tribunal has also gravely erred in directing the first respondent herein to reopen the matter in respect of Vijayakumar also. No appeal is filed against Vijayakumar by the Department. Since the matter was only relating to the petitioner, it is not open for the Tribunal to direct the first respondent to reopen the matter against Vijayakumar. In this view of the matter, we find that the observations made by the Tribunal that the petitioner has been treated with equity and equanimity and appropriate punishment was imposed on him is also erroneous.
As aforementioned, the petitioner should be imposed with the penalty as imposed on Vijayakumar. Accordingly, the following order is made:-
i) The impugned order dated 28.6.2010 at Annexure-A passed by the Tribunal and the orders of the Disciplinary Authority as well as the Appellate Authority in so far as they relate to imposition of penalty of
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reduction in rank of the petitioner stand quashed.
ii) The petitioner is hereby imposed
with penalty of reduction of one
increment for one year without
cumulative effect. The orders of the Disciplinary Authority as well as the Appellate Authority with regard to penalty on the petitioner are modified accordingly.
Writ petition is allowed accordingly.
Sd/-
JUDGE Sd/-
JUDGE *ck/nk-