Removal from Service ESIC CAT Bench Chandigarh wherein Court did not find the punishment disproportionate to charges levelled.
Judgment digest
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH
O.A.NO.060/00175/2020
Decided on: 24.02.2020
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Applicant:
Santosh Kumar (Ex. UDC) (ID-145470), aged about 35 years, son of Shri Yudubir Prasad, resident of Laxmi Bawan, Behind Atal Baba, House Yogipur Road Hilsa, PO & PS Hilsa, District Nalanda, Bihar-801302, Group C.
Respondents:
- Union of India through its Secretary, Ministry of Labour & Employment, Govt. of India, (Social Security Division), Shram Shakti Bhawan, Rafi Marg, New Delhi-110001.
- Insurance Commissioner (P&A), Headquarters Office, ESI Corporation, Panchdeep Bhawan, New Delhi 110001.
- The Additional Commissioner &
regional Director (VIG), ESI Corporation, Madhya Marg, Sector 19A,
Chandigarh.
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Quorum:
HON’BLE MR. SANJEEV KAUSHIK, MEMBER (J)
HON’BLE MS. NAINI JAYASEELAN, MEMBER (A)
Facts and evidence presented by both parties.
The facts which lead to the filing of this Original Application are that the applicant, while working as UDC at Ludhiana, was issued a charge sheet dated 8.12.2017 with the allegations that he used impersonation in a written examination held on 8.11.2009 at D.A.V. Senior Secondary School, Sector 8-C, Chandigarh, for the post of Lower Division Clerk in ESI Corpn. thus, he got employment in the Corporation based on a fraud, and secondly, he gave false information in the Attestation Form, about his trial in Court of Additional Sessions judge-I, Hilsa, District Nalanda, Bihar in criminal case u/s 367/34 IPC registered against him vide FIR No. 274/05 dated 11.10.2015, at Chandi Police Station, District Nalanda, Bihar. The enquiry was conducted and the report was submitted by the IO on 10.8.2018, holding that applicant is guilty of charge no. I and charge No.2 loses its significance given the first charge having been proved.
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The applicant submitted a reply dated 30.8.2018 and ultimately penalty of removal from service was imposed upon him vide order dated 6.12.2018. The appeal dated 1.1.2019 filed by him was also rejected vide a detailed order dated 26.11.2019, hence the O.A. learned counsel for the applicant submitted that the impugned orders are not sustainable as no action could be taken on anonymous/pseudonymous complaint as per CVC instructions dated 7.3.2016 and even if there was wrong information in attestation form, courts have ruled to take a lenient view. The non-mention of the criminal case in form was an inadvertent mistake on part of the applicant. If there are two different FSL reports, then a third view was warranted to reach the truth of the matter. No irregularity or discrepancy has taken place in the conduct of examination, as per evidence on record. No charge of impersonation is made out from the record of the case. The CFSL report is full of doubts and cannot be relied upon by the respondents. The impugned orders are based on conjectures and surmise and as such cannot be sustained in the eyes of law.
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A perusal of the inquiry report would show that the I.O. has conducted a proper enquiry providing the applicant proper opportunity to defend himself. The I.O. has discussed documentary and oral evidence in detail including the report of CFSL. A clear-cut fining is there that the person who appeared in the examination held on 8.11.2009 and who signed and wrote the OM sheet was a different person from the person who applied for the post of LDC. The defence witnesses have also been considered by the I.O. and after examination of written and oral evidence, the findings have been recorded against the applicant proving charge No.1 fully against him. The 2nd charge was accepted by the applicant and he had also tendered an apology and as such IO recorded that this charge loses its sheen when charge no.1 stands proved. The applicant was given show-cause notice to which he submitted a reply claiming that there are two divergent opinions of hand writing experts etc. and as such 3rd opinion as warranted and that he had made an inadvertent mistake for which he should not be punished harshly. Rejecting the pleas taken by the applicant, the the penalty of removal from service was imposed upon him by the D.A. Then applicant filed an appeal dated 1.1.2019, which was decided on 26.11.2019, rejecting the same.
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A perusal of the same shows that Authority has applied his mind to the various pleas of the applicant and rejected it point-wise and order is self-speaking. The learned counsel for the applicant has not been able to point out any irregularity or illegality which may convince us to even issue a notice of motion to the respondents. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. It is by now well-settled law that it is for the disciplinary authorities to decide on the punishment and the courts or Tribunals should not interfere with the same unless it is found that the same pricks the conscience of a prudent man. In other words, there is no complete bar in interference by a court of law or Tribunal in quantum of penalty upon a delinquent employee and such interference is dependent upon case to case basis. It has been held that ordinarily the court or tribunal cannot interfere with the discretion of the punishing authority in imposing a particular penalty but this rule has an exception. If the penalty imposed is grossly disproportionate to the misconduct committed, then the court can interfere.
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Judgment:
The court is devoid of the power to re-appreciate the evidence and come to its conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its independent finding. The case in hand does not warrant any interference by us in the impugned orders, which are found to be speaking one and passed with due application of mind. In the wake of the aforesaid discussion, this O.A. is found to be devoid of any merit and is dismissed in limine accordingly.
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For case specific advice, please contact Chandigarh Administrative Tribunal/Service Matter/Labour and Service/CAT/Legal Aid/Administrative/Senior/Service Employment Lawyers Advocates in Chandigarh Panchkula Mohali Kharar Derabassi Zirakpur etc.
This post is written by Riya Singh.
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