A.J. Rohee, Member (J):
1. By this application under Section 19 of the Administrative Tribunals Act, 1985, (hereinafter referred to as the Act) the applicant has challenged the impugned memorandum/chargesheet dated 30.07.2007, disagreement memo dated 18.04.2011 and the penalty order dated 28.06.2011 both issued by the Disciplinary Authority and the Appellate Authority's order dated 24.01.2012 confirming the penalty in the departmental proceeding initiated against the applicant.
2. The applicant was initially appointed as a Peon on 15.02.1994 in the office of Employees State Insurance Corporation (ESIC), Lower Parel, Mumbai. While in service he qualified SSC examination in the year 1996 and was promoted to the cadre of Lower Division Clerk on 15.04.2004.
3. On 08.01.2007, the applicant was attached to Despatch Section. It is alleged that shri P.G. Panchal and Narotham Panchal, partners of M/s. Bharat Engineering Works (hereinafter referred to as the firm) made verbal complaint to Shri S.S. Nair, Recovery Officer, ESIC, that the applicant allegedly demanded and accepted Rs.30,000/-from them under assurance to settle the dues of Rs. 4.25 lacs, payable by them to the ESIC. On the advise given by Shri S.S. Nair, both the partners submitted written complaint dated 08.01.2007 (Annexure A-2) making similar allegations against the applicant and claiming refund of amount from him since work assured by him was not done. Shri S.S. Nair forwarded the said letter (Annexure A-2) to the Additional Commissioner, ESIC, Lower Parel, Mumbai on the basis of which the office order No. 31-A-20/11/7276/E-11 dated 02.02.2007 (Annexure A-4) was issued by Respondent No. 2, the Disciplinary Authority, under Central Civil Services (Classification, Control and Appeal) Rules, 1965, by which the applicant was put under suspension with immediate effect and also suffered reversion to the parent post of Peon. The applicant made a representation dated 05.02.2007 (Annexure A-5) for revocation of the suspension order. It is alleged by the applicant that subsequently by a letter dated 10.02.2007 and the notarized affidavit 13.02.2007 vide [Annexure A-6 (i) and (ii)], the partners of the firm informed the Respondent No.2, that they have made a complaint against the applicant inadvertently and that amount in question was not demanded by or paid to the applicant but infact it was paid to one Shri Sharad Masurkar, Assistant of Mr Vasant Aberkar, legal practitioner towards professional charges. However the Disciplinary Authority after making preliminary inquiry served the memorandum of chargesheet dated 30.07.2007 (Annexure A-7) on the applicant and regular departmental inquiry on the charges of gross misconduct, acceptance of bribe amount was initiated against the applicant.
4. By a letter dated 02.08.2007 (Annexure A-8) the applicant sought copies of the statement of witnesses and made a request to the Inquiry Officer that he may be heard in person during the enquiry. On the same day he submitted another letter (Annexure A-9) to the Regional Director for revocation of his suspension order on the grounds of financial constraint and lapse of period exceeding six months from the date of passing the suspension order. In pursuance thereof vide order dated 02.04.2007 (Annexure A-10), the suspension order was revoked and the applicant was reinstated with effect from 03.04.2008.
5. The applicant contested the inquiry proceeding by filing written statement of defence on 16.11.2010 (Annexure A-13). After examining the witnesses and considering the material on record, the Inquiry Officer submitted the report dated 31.12.2012 (Annexure A-15) holding that none of the four charges levelled against the applicant are proved and thus dropped the enquiry by exonerating the applicant. The said report was submitted to the Disciplinary Authority, which on consideration of the material on record, disagreed with the findings recorded by the Inquiry Officer and issued Disagreement Memo dated 18.04.2011 (Annexure A-16) calling upon the applicant to submit his written statement of defence, to which on 24.05.2011, the applicant submitted a representation (Annexure A-17) denying the averments made in the disagreement memo. After hearing the applicant the impugned penalty order was passed by the Disciplinary Authority on 28.06.2011 and 19.07.2011 [Annexure A-18(i)and (ii)], withholding next two increments, failing due after the date of issuance of the penalty order.
6. Dissatisfied with the penalty order the applicant preferred an appeal to the Director General/ESIC/Appellate Authority on 25.08.2011 (Annexure A-19) contending that the impugned penalty order is wrong and is not in consonance with the material produced on record. The Appellate Authority did not find favour with the applicant and rejected the appeal by confirming the penalty vide order dated 24.01.2012 (Annexure A-1).
7. Having exhausted all the statutory remedies to seek exoneration from the charges levelled against him the applicant approached this Tribunal challenging the Memorandum/Chargesheet (Annexure A7), Disagreement Memo (Annexure A-16), Penalty Order (Annexure A-18) and the Appellate Authority's Order (Annexure A-1)on the following grounds namely:
"(a) That the impugned order of the Disciplinary Authority and the Appellate Authority violated the principles of natural justice and is arbitrary and illegal, since the Inquiry Officer exonerated the applicant from all the charges.
(b) That there is no evidence to substantiate the charges levelled against the applicant especially when the witness Shri P.G. Panchal partner of the firm was not examined by the Presenting Officer to prove the charge of illegal demand by the applicant and acceptance of bribe amount of Rs.30,000/-for settlement of the dues at the earliest.
(c) That the Disciplinary Authority and the Appellate Authority failed to consider the letter and the affidavit of the partners of the said firm in which they have clearly stated that through inadvertence they made allegations against the applicant and infact they paid the amount to the assistant of their Advocate towards Professional Charges.
(d) That the departmental inquiry was initiated with a view to expose the applicant and to deprive him of further promotion, especially when many of his junior colleagues were promoted as Upper Division Clerk."
8. On the above grounds it is prayed to set aside the Memorandum/Chagesheet, Disagreement Memo, Penalty Order and the Appellate Authority's order and to confirm the order of the Inquiry Officer exonerating the applicant of all the charges levelled against him.
9. The respondents vide written statement dated 30.10.2012 resisted the application denying all the adverse allegations and averments made there in. According to the respondents the impugned orders passed by the respondents are perfectly legal and valid which calls for no interference by this Tribunal. It is however not disputed that the applicant was appointed as Peon and was subsequently promoted as LDC and at the relevant time he was posted in Despatch Section. It is also not disputed that on the basis of the verbal complaint made by the partners of the firm, Shri S.S. Nair, Recovery Officer, forwarded their written complaint against the applicant alleging his indulgence in making demand for and accepting the gratification of Rs.30,000/-with assurance to settle the dues amounting to Rs.4.25 lakhs payable by them to the ESIC. It is also not disputed that pursuant thereof the departmental enquiry was initiated against the applicant. According to the respondents, the prescribed procedure was followed while conducting the enquiry and that although the Inquiry Officer exonerated the applicant, Disciplinary Authority recorded a Disagreement Memo and imposed penalty of withholding of one increment and this decision was maintained by the Appellate Authority.
10. According to the respondents both the Disciplinary Authority and the Appellate Authority have taken a lenient view by imposing very light penalty on the applicant although the charges of grave misconduct were levelled and proved against him. Full opportunity was given to the applicant to defend him in the enquiry proceeding.
11. According to the respondents the applicant has not exhausted all the remedies available to him, and as per the rules he should have challenged the Appellate Order by way of revision to the Chairman of the Standing Committee, within stipulated time. Since he failed to do so and has directly filed the application before this Tribunal, the same is premature. This is so because before exhausting all the remedies available for resolution of his grievance, the present application is not maintainable in view of Regulation No.19(4) of the ESIC (Staff and Condition of Service) 1959 and section 20 of the Act.
12. According to the respondents the applicant has no case on merit and hence the application is liable to be dismissed.
13. The applicant filed rejoinder on 06.11.2013, denying all the adverse allegations and averments made in the written statement including the fact that he had ever given any assurance to the partners of the firm nor accepted any illegal gratification from them. The Disciplinary Authority and the Appellate Authority have not considered the letter and affidavit given by the partners of the firm to the respondents, in which they have exonerated the applicant and clearly stated that through inadvertence and mistake identity they have submitted a complaint against the applicant. That on the strength of Competitive Departmental Examination for the post of LDC held on 17/18 May 2008, the other colleagues of the applicant were promoted to the post of LDC and the some of them got further promotion as UDC. The applicant has also qualified the said competitive examination. However, he was not granted promotion. That the applicant was unaware about the provisions of revision to the Standing Committee against the Appellate order and hence he did not exercise the said option.
14. The respondents have filed additional reply on 07.01.2013, reiterating the same grounds raised by them in the written statement.
15. During pendencey of this proceeding, the applicant filed on record copy of the order dated 05.08.2013, issued by the respondents in respect of his promotion to the post of LDC. He accordingly joined his new assignment.
16. On 29.11.2013, when the matter was called on for final hearing, we have heard the oral submissions of Shri P.P. George, learned Advocate for the applicant and Shri V.D. Vadhavkar, learned Advocate for the respondents. We have carefully perused the pleadings of the parties, the documents produced by them in support of their rival contentions and have also given thoughtful consideration to the submissions advanced before us.
17. The only point that arises for our consideration is whether the impugned Memorandum/Chargesheet (Annexure A-7), Disagreement Memo (Annexure A-16), Penalty Order (Annexure A-18) and the order of the Appellate Authority (Annexure A1) are liable to be set aside or quashed on the grounds alleged by the applicant? We record our finding in the negative for the following reasons:REASONS
18. It is obvious that this Tribunal exercises powers of judicial review to set aside the wrong, illegal and arbitrary administrative actions of the authorities. However, while doing so it is not permissible for this Tribunal to re-assess or reapprise the entire evidence and material brought on record and to arrive at a different conclusion/finding. This Tribunal can only consider on the basis of the material brought on record, if the alleged action taken/order passed by the Administrative Authorities is arbitrary exercise, of powers vested in them which requires to be suitably rectified by this Tribunal by exercising the power of judicial review.
19. Keeping in mind the above principle, we shall now turn to consider the legality and propriety of the impugned orders.
20. It appears that under the regulations, the remedy of revision against the Appellate Order is provided and admittedly the applicant has not exercised the said option by filing a revision before the Chairman of the Standing Committee of ESIC. Thus the applicant failed to exhaust that remedy and as such to that much extent it can safely be said that before coming to this Tribunal the applicant has not exhausted all the remedies available. However, considering the fact, that the applicant was initially appointed as Group 'D' employee, although was subsequently promoted as LDC, he might not be aware about this provision. Further there is nothing on record to infer that the Disciplinary Authority, the Appellate Authority, the Presenting Officer or the next friend appointed by the applicant to defend him and represented him in the enquiry proceeding have ever appraised him about this provision.
21. However, since the applicant has exhausted one remedy, before approaching this Tribunal, we are of the view that on this preliminary ground that the applicant has not preferred revision against the Appellate Authority's decision, it will not be just and proper to drop this proceeding without considering it on merit. We, therefore, hold that there is substantial compliance of the provisions of Section 20 of the Act by the applicant before approaching this Tribunal.
22. The record clearly shows that the Inquiry Officer, Shri R.K. Choudhary, has followed the procedure prescribed under the Central Civil Services (Classification, Conduct and Appeal Rules), 1965 while holding the enquiry which is evident from perusal of the Memorandum (Annexure A-7), Article of Charge (I to IV) and also the Daily order sheets and statements of the two witnesses examined by the Presenting Officer. It is also obvious from record that full opportunity was given by the Inquiry Officer to the applicant to defend him. During the course of enquiry, statement of Shri S.S. Juneja, Deputy Director and of Shri S.S. Nair, Deputy Director (Recovery Officer) of ESIC was recorded and both these witnesses were cross examined on behalf of the applicant.
23. It is true that none of the two partners of the firm was examined by the Presenting Officer, although, it appears from the record that attempts were made to secure their presence. It is true that they were the material witnesses in asmuch as, enquiry was initiated on the basis of oral complaint initially made by them with the witness Shri S.S. Nair and on his direction subsequently by submitting a written complaint against the applicant, showing his indulgence in making demand and accepting illegal gratification by assuring to finalise the dues. It also appears from record that those partners have subsequently retracted from their version and have submitted an application and notarised affidavit to the respondents intimating that inadvertently they have raised allegation against the applicant under mistaken identity. It is true that in such circumstances recording of their evidence by the Inquiry Officer was necessary. However, failing to examine them alone would not disprove the charges levelled against the applicant, especially when the other witness particularly Shri S.S. Nair supported the case and had stated about verbal complaint made by the two partners to him against the applicant. To disprove this fact, there was no bar for the applicant to examine any of those partners as defence witness in order to establish and prove the veracity and correctness of the contents of the application and the affidavit. Failing to do so, adverse interference will have to be drawn against the applicant.
24. Further from the evidence of Shri S.S. Nair it has been rightly held by the Disciplinary Authority while recording disagreement memo that the same is sufficient to establish charges levelled against the applicant. This witnesses has specially stated about the oral complaint made by the partners against the applicant and specifically stated that he demanded and accepted Rs.30,000/- to settle dues from those partners.
25. It is also obvious from record that the applicant was having access to the notices issued from the Despatch Section to various employers regarding recovery of amount due from them. This being so, it is quite probable that the applicant came in contact with the partners of the firm and since they were liable to pay dues to the extent of Rs.4.25 lakhs to the ESIC the applicant persuaded them to settle the dues for which he demanded and accepted Rs.30,000/-from them. In such circumstances, view taken by and the reasons recorded by the Disciplinary Authority in the Disagreement Memo and by the Appellate Authority concurring with the same, cannot be said to be improper or arbitrary requiring this Tribunal to interfere and set aside the same by exercising the powers of judicial review. This being so, although the Inquiry Officer exonerated the applicant from the charges levelled against him it can safely be said from record that the Disciplinary Authority and the Appellate Authority are fully justifed in taking the contrary view on the basis of the material produced on record. In such circumstances, it cannot be said that the finding recorded by this two authorities is illegal, improper or arbitrary
26. The record shows that both the Disciplinary Authority and the Appellate Authority were kind enough to take a lenient view, since minor penalty of withholding of one increment only was imposed on the applicant. However, no further leniency can be shown to him, since during the pendency of this proceeding he was promoted to the post of LDC.
27. We, therefore, hold that any of the grounds raised by the applicant challenging the impugned orders are not established and hence we do not feel it necessary to interfere with the impunged orders.
28. In the result the Original Application stands dismissed, however with no order as to cost.