N. Satheesan, S/O P. Narayanan, Retired Assistant Provident Fund Commissioner V. Union of India, Represented by the Secretary, Ministry of Labour & Employment, Government of India and The Chairman, Central Board of Trustees, Government of India, Ministry Labour, Employees Provident Fund Organisation and The Central Provident Fund Commissioner Employees Provident Fund Organisation and The Regional Provident Fund Commissioner-1 Employees Provident Fund Organization, Regional Office, Thiruvananthapuram

OP (CAT)/94/2016

AI Insights

The case involves N. Satheesan, a retired Assistant Provident Fund Commissioner, who challenged the disciplinary actions taken against him by the Employees Provident Fund Organisation (EPFO). The disciplinary actions were based on allegations of misconduct related to the preparation of a Mahazar report and the execution of a warrant of attachment during his service. The Central Administrative Tribunal initially dismissed Satheesan's application against these actions. However, the High Court found that the Tribunal had not properly considered all the arguments and evidence presented by Satheesan, leading to the decision to set aside the Tribunal's order and remand the case for a fresh examination.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 816561 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-02-2023
• Assessment Year: misc
• Laws Referred To: EPF Staff (CCA) Rules 1971, EPF & MP ACT 1952
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: MANU S; N N SUGUNAPALAN; N N SUGUNAPALAN
• Assessee Lawyers: K P SATHEESAN; ANOOP NAIR; P MOHANDAS; K SUDHINKUMAR; S VIBHEESHANAN
• Keywords: Arbitrary; Disciplinary action; Illegal; Malafides; Misconduct; Notional Promotion; Recovery of dues; Unjust; Ill motives; Consequential monetary benefits
• Section: 8; 34; 33

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 21ST DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 OP (CAT) NO. 94 OF 2016 AGAINST THE ORDER OA 677/2012 & RA No.180/00014/2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER/S: N.SATHEESAN, S/O P. NARAYANAN, RETIRED ASSISTANT PROVIDENT FUND COMMISSIONER, RESIDING AT CRA 3A, SREE CHITHIRA LANE, VANCHIYOOR, THIRUVANANTHAPURAM BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.ANOOP.V.NAIR; SRI.P.MOHANDAS ERNAKULAM SRI.K.SUDHINKUMAR; SRI.S.VIBHEESHANAN RESPONDENT/S: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF LABOUR & EMPLOYMENT, GOVERNMENT OF INDIA, SHRAM SHAKTI BHAVAN, RAFFI MARGH, NEW DELHI-100001 2 THE CHAIRMAN, CENTRAL BOARD OF TRUSTEES, GOVERNMENT OF INDIA, MINISTRY LABOUR, EMPLOYEES PROVIDENT FUND ORGANISATION, SHRAM SAKTHI BHAVAN, RAFFI MARGH, NEW DELHI- 110 001 3 THE CENTRAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATION, HEAD OFFICE, 14, BHIKAIJI CAMA PLACE, NEW DELHI- 110 001 O.P.(CAT) No.94/2016 -2- 4 THE REGIONAL PROVIDENT FUND COMMISSIONER-1 EMPLOYEES PROVIDENT FUND ORGANIZATION, REGIONAL OFFICE, THIRUVANANTHAPURAM-695 004 BY ADVS. SRI.MANU.S, CGC SRI.N.N.SUGUNAPALAN (SR.) SRI.N.N.SUGUNAPALAN SR. NITA N.S OTHER PRESENT: SC S. SUJIN THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(CAT) No.94/2016 -3- J U D G M E N T S.V. Bhatti, J. We have heard Dr K P Satheesan learned Senior Advocate for the petitioner, and Mr S Sujin learned Standing Counsel for the Employees Provident Fund Organisation. 2. The applicant in O.A. No.677/2012 is the petitioner herein. The petitioner challenges orders dated 11.12.2015 and 11.02.2016 in O.A.No.677/2012 and Review Application No.180/00014/2016 of the Central Administrative Tribunal, Ernakulam Bench. The petitioner/Assistant Provident Fund Commissioner (Retd.) filed O.A.No.677/2012 before the Central Administrative Tribunal praying for the following reliefs: “i) to set aside Annexure-A2 order No. Vig. XIII(18)1999/1357 dated 18-3-2008 issued by the 3rd respondent as it is vitiated with malafides and ill motives; O.P.(CAT) No.94/2016 -4- ii) to set aside Annexure-A5 order No. Vig. XII(18)99/Vol.II/2142 dated 18-6-2012 issued by the 2nd respondent as it is arbitrary, illegal and unjust; iii) to declare that the Applicant is entitled to get the amount recovered from his salary as per Annexure-A2 order and to get notional promotion with effect from the date on which his immediate junior was promoted as Regional Provident Fund Commissioner Grade-II with consequential monetary benefits including A.C.P. and interest iv) to issue such other order or direction as this Hon'ble Tribunal may be deem fit and proper in the facts and circumstances of the case.” 3. Annexure A2 order is dated 18.03.2008, whereunder the Central Provident Fund Commissioner imposed the following punishment on the petitioner. “NOW THEREFORE keeping in view the extent, nature, effect, gravity and seriousness of the proved misconduct, as well as that no personal motive for Shri Satheesan’s acts of omission and commission has been found, I consider that good and sufficient reasons exist for imposing a major penalty though not a severe one in the interest of justice, in exercise of powers O.P.(CAT) No.94/2016 -5- vested under Rule 8 of the EPF Staff (CCA) Rules 1971. I impose the penalty of reduction in pay by two stages from Rs.11850/- to Rs.11300/- in the time scale of pay (Rs.8000 – 275 – 13500) of Shri N Satheesan for a period of two years with effect from the date of this order with further direction that Shri Satheesan will not earn increments during the period of reduction of pay and that on expiry of this period the reduction will not have the effect of postponing the future increments of his pay. I order accordingly.” Annexure A5 order dated 15.06.2012 is made by the Additional Central P.F. Commissioner on the Revision Petition dated 18.05.2010 filed by the petitioner herein. 4. The following chronology from the service tenure of the petitioner is noted. The petitioner, in 1972, joined as Lower Division Clerk (LDC) in the Employees Provident Fund Organisation (EPFO). In 1981, the petitioner was promoted as Provident Fund Inspector, and in 1990 promoted and posted as Enforcement Officer O.P.(CAT) No.94/2016 -6- (Recovery). The petitioner was promoted as Assistant Provident Fund Commissioner in 1994 and on 31.10.2011 retired from service. The petitioner principally worked in the State of Kerala and first transferred to the States of Tamil Nadu and Karnataka. Finally, in 2001, the petitioner was retransferred to the State of Kerala. While the petitioner was working as Enforcement Officer (Recovery) in 1993, the petitioner raised a warrant of attachment on one of the defaulters, the details of which are unnecessary for our consideration. The petitioner also prepared Mahazar and gave it to the Recovery Officer for attachment and realisation of the Provident Fund dues. The noticee, as is evident from the record, challenged the order of attachment and Mahazar issued by the petitioner. The order of attachment and Mahazar were set aside by this Court, and this Court observed that the order of attachment and Mahazar do not conform to the requirement of law etc. The said O.P.(CAT) No.94/2016 -7- observation constituted the basis for initiating disciplinary action against the petitioner. The charge against the petitioner is that the attachment and preparation of the Mahazar report by the petitioner are not in accordance with the extant Rules. 5. The following charges were framed against the petitioner: “In as much as while executing the warrant of attachment of properties in respect of M/s Premier Morarji chemicals - KR/4879, Kerala, prepared a vague mahazar in a very casual manner without mentioning the full details of the properties so attached in violation to the Rule 33.34 of the Income Tax which is applicable to the employees of Employees' Provident Fund Organisation by virtue of Rule 8 G of the EPF & MP ACT 1952. Recovery Manual and also without taking care to ensure that there is a reasonable nexus between the worth of properties attached and the amount to be recovered. The quantum of properties attached and the manner in which it was handled afterwards was also improper. This attracted adverse remarks being passed against the EPFO Recovery Machinery by the Hon’ble High Court of Kerala in the judgement pronounced as detailed in the statement of imputations and it has also put the O.P.(CAT) No.94/2016 -8- Organisation to a great financial risk (Article-1) In as much as he acted beyond his statutory power and filed a revival petition in respect of M/s Premier Morarji Chemicals before the Hon'ble High Court of Kerala by colluding with one Sri K.G. Kuruvilla, the son of Sri K.G. George, Chairman and Managing Director of the establishment without the consent of the Recovery Officer or the competent authority as detailed in the statement of imputations. (Article-II)” 6. The Disciplinary Authority, through Annexure A2 order dated 18.03.2008 (excerpted the above), imposed the punishment of pay reduction by two stages. The Appellate Authority and the Revisionary Authority confirmed the punishment. Therefore, the petitioner, raising the grounds available under judicial review of punishment pursuant to disciplinary proceedings, filed the O.A. No.677/2012 before the Central Administrative Tribunal. The Tribunal dismissed the Original Application. O.P.(CAT) No.94/2016 -9- 7. Learned Senior Counsel Dr K P Satheesan argues that Central Administrative Tribunal fell in a serious jurisdictional flaw in reviewing the order or punishment challenged before it. The petitioner all through has been arguing that the charge as framed is not correct or tenable; the observations of this Court while setting aside the attachment and Mahazar prepared by the petitioner do not lead to an inference of misconduct; and finally, assuming without admitting, there was an error in the attachment prepared by the petitioner, such omission does not amount to misconduct as the Department finally recovered the due. When pressed into service as a charge or misconduct, the respondents are obliged to establish the charge at least with some evidence. He argues very hard that the disciplinary action was initiated only to deny promotion to the petitioner in 2004. The theory of at least some evidence to justify the order of punishment is attracted to the case at hand. In support of that O.P.(CAT) No.94/2016 -10- argument, as a first attempt, he has invited our attention to the grounds raised in the Original Petition and several omissions and commissions in the order of the Central Administrative Tribunal. Alternatively, it is argued that the Tribunal ought to be directed to reconsider the issue on well-established law principles in petitions that are filed with challenging disciplinary proceedings and their outcome. 8. Adv S Sujin argues that once this Court records a finding on the attachment and Mahazar, the negligence or misconduct in duty attributed to the petitioner is brought home. The Tribunal, to the extent it felt necessary, examined the contentions and recorded a finding. Firstly, it is argued that the case does not warrant interference on merits, and this court, in its supervisory jurisdiction, will not discharge the function or duty of an Appellate Authority on the quality of enquiry and quantity of punishment imposed on the petitioner. O.P.(CAT) No.94/2016 -11- This Court, if persuaded by the alternate argument of Senior Counsel, may set aside the order under review and remit the matter to the Tribunal for consideration afresh. The Court may pass appropriate orders. 9. In the background of limited submissions, we have two options: to review the order under challenge within the scope of Article 227 of the Constitution of India and record a finding on the disciplinary proceedings and resultant punishment imposed on the petitioner. Alternatively, whether the case warrants remand or not may be considered. 9.1 We have juxtaposed the grounds/arguments raised by the petitioner firstly on the order of the Tribunal and how the Tribunal has come to quick conclusions without subjecting each of the grounds urged by the petitioner against the disciplinary proceeding and also the punishment imposed on the petitioner. Justice should not only be done but seen to have O.P.(CAT) No.94/2016 -12- been done in exercising our jurisdiction. The scope of judicial review on the orders made in pursuance of a disciplinary proceeding is well established. The Tribunal has also noted the jurisdictional consideration. However, the Tribunal, in our respectful view, missed the point and the thread running through the stages of alleged misconduct till the order of punishment in Annexure A2 is issued. Further criticism or finding on the order of the Tribunal is equally not desired for the view we are taking in the matter. We are convinced that the order under review needs to be set aside and accordingly set aside. To enable the petitioner to address all the grounds available on the orders of punishment, the Original Application is restored in the files of the Central Administrative Tribunal. O.P.(CAT) No.94/2016 is allowed. The matter is remitted to the Central Administrative Tribunal for consideration and disposal afresh in accordance with law. The petitioner is given O.P.(CAT) No.94/2016 -13- the liberty to mention before the Central Administrative Tribunal for an early posting date, and we request the Tribunal to do the needful. Sd/- S.V.BHATTI JUDGE Sd/- BASANT BALAJI JUDGE jjj O.P.(CAT) No.94/2016 -14- APPENDIX OF OP (CAT) 94/2016 PETITIONER ANNEXURES ANNEXURE A2 TRUE COPY OF THE ORDER NO.VIG.XIII(18)1999/1357 DATED 18-03-2008 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A5 TRUE COPY OF THE ORDER NO.VIG.XII(18)99/VOL.II/2142 DATED 18-6-2012 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A1 TRUE COPY OF THE ORDER IN O.A.NO.836/2006 DATED 29-03-2007. ANNEXURE A3 TRUE COPY OF THE ORDER NO.11016/14/2008-SS-1 DATED 31-7-2009 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A4 TRUE COPY OF THE REVIEW PETITION/REVISION PETITION FILED BY THE APPLICANT BEFORE THE 2ND RESPONDENT DATED 18-5-2010. ANNEXURE A6 TRUE COPY OF THE COVERING LETTER DATED 21-06-2012 OF THE 4TH RESPONDENT. ANNEXURE RA(1) TRUE COPY OF THE ORDER DATED 11-12-2015 IN O.A.NO.677/2012. EXHIBIT P1 TRUE COPY OF THE OA NO. 677/12 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 677/12 DT 12/9/13 EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN OA 677/12 DT. 8/7/14 EXHIBIT P4 TRUE COPY OF THE ORDER DT. 11/12/15 IN OA 677/12 OF THE HON'BLE CAT, ERNAKULAM O.P.(CAT) No.94/2016 -15- EXHIBIT P5 TRUE COPY OF THE REVIEW APPLICATION NO. 14/16 IN OA 677/12 FILED BY THE PETITIONER EXHIBIT P6 TRUE COPY OF THE ORDER DT. 11/2/16 IN RA NO. 14/16 IN OA 677/12 "