A. Roy, J.@mdashThe judgment and order dated 17.5.2001 passed by the Learned Central Administrative Tribunal, Guwahati Bench (hereinafter referred to as the Tribunal) allowing the original application filed by the present Respondent, impugning the order of penalty following a disciplinary proceeding and the order of the appellate authority, dismissing the departmental appeal, has been assailed in the instant proceeding.
2. We have heard Mr. B.R. Dey, Advocate assisted by Mr. B. Sarkar for the Petitioners and Mr. B.K. Sharma, Senior Advocate assisted by Mr. A.C. Sarma for the Respondent.
3. The facts in short culminating in the present writ petition are that by a Memorandum dated 17.1.95, Annexure-1 to the writ petition issued by the Respondent No. 1, an enquiry was proposed to be held against the Respondent under Regulation 14, Part 3 of the 3rd Schedule of the Employees'' State Insurance Corporation (Staff and Conditions of Service) Regulations 1959 (hereinafter referred to as a Regulation) the Respondent was directed to submit his written statement of defence within 10 days of the receipt of the memorandum. At the relevant time, the Respondent was holding the post of Manager-II of the Employees'' State Insurance Corpn., North Eastern Region (hereinafter referred to as the Corporation) for convenience, the charges, levelled against the Respondent are extracted herein below:
Article of charge No. 1
That Shri H. Ali, Manager Gr. II/II E.S.I. Corporation N.E. Region while working as local office manager Charduar during the period from 1.11.89 to 4.12.91 committed gross misconduct inasmuch as that he approved and passed Extended Sickness Benefit (ESB) payments in respect of Shri Sunil Chandra Bora, Ins. No. 202138 for the period from 6.12.90 to 26.3.91 amounting to Rs. 2,084/- on the basis of certificates issued by IMO with the diagnosis Cervical Spondalites/Ankalysing Spondalities. The disease ''Cervical Spondalites/Ankalysing Spondalites is not included in the ESB list as per resolution of the E.S.I. Corporation dated 28.2.1976 and 25.2.1978. Thus he has caused a loss to the corporation amounting to Rs. 2084/- due to his negligence and unauthorised acceptance of E.S.B. case improperly at his own level.
Thus, Shri Ali by his above act exhibited lack of devotion to duty and conduct unbecoming of a corporation employee thereby violated Rule 3(1)(ii)(iii) of C.C.S. (Conduct) Rules, 1964 which is applicable to the employees of ''Employees'' State Insurance Corporation by virtue of Regulation 23 of the Employees'' State Insurance Corporation (Staff and conditions of Service) Regulations 1959, as amended.
Article of charge No. 2
That the said Shri H. Ali while working as local office manager Jorhat during the period from 1.6.87 to 30.10.89 committed gross misconduct inasmuch as he prepared docket No. 13/54 dated 26.4.1989 for Rs. 195/- in respect of insured person named S.P. Das, Ins. No. 184693 and forged the acquittance and misappropriated the amount of Rs. 195/-.
Thus, Shri Ali by his above act exhibited lack of integrity, devotion to duty and conduct unbecoming of a Corporation employees thereby violated Rule 3(1)(i)(ii)(iii) of C.C.S. (conduct) Rules, 1964 which is applicable to the employees of Employees; State Insurance Corporation by virtue of Regulation 23 of the E.S.I. Corporation (Staff and Conditions of Service) Regulations 1959 as amended.
Article of charge No. 3
That the said Shri Ali while working as local office manager Jorhat during the period front 1.6.87 to 30.10.89 committed gross misconduct inasmuch as, he prepared docket No. 14/38 dated 28.4.89 in respect of Shri N.K. Sarkar Ins. No. 129007 for Rs. 300/- and forged the acquittance of the insured person appropriated Rs. 300/-.
Thus, by his above act Shri Ali exhibited lack of integrity, devotion to duty and conduct unbecoming of a Corporation employee thereby violated Rule 3(1)(i)(ii)(iii) of C.C.S. (conduct) Rules 1964 which is applicable to the employees of Employees'' State Insurance Corporation by virtue of Regulation 23 of the Employees'' State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959 as amended.
Sd/- Y.K. Bhattacharyya.
Regional Director
E.S.I. Corporation
N.E. Region, Guwahati.
4. The Respondent duly submitted his written statement of defence, denying the charges. Thereafter Sri C.R. Paul, Assistant Regional Director, North Eastern Region was appointed as the Presenting Officer and Sri R.K. Sukla, Joint Director, D.E. Eastern Zone, as the Enquiry Officer.
5. In the disciplinary proceeding that followed, six witnesses for the disciplinary authority were examined in support of the charges. Several documents were also proved. The Respondent participated in the proceeding and duly cross examined the witnesses. He did not examine any witness on his behalf. He however, submitted his written brief in support of his defence.
6. At the conclusion of the proceedings, the Enquiry Officer submitted his report on 14.11.96, holding that the Charge No. I and II had been proved. He held that Charge No. III had not proved.
7. The disciplinary authority, thereafter forwarded a copy of the enquiry report to the Respondent, affording him an opportunity of submitting his written show cause thereto. Accordingly, the Respondent submitted his written explanation/show cause contending inter alia that the initiation of the disciplinary proceeding was void ab initio inasmuch as his appointing authority being the Insurance Commissioner the memorandum of charges could not have been issued by the Regional Director of the Corporation and on that ground alone the disciplinary proceeding and the report of the Enquiry Officer were liable to be set aside. He further contended that the findings of the Enquiry Officer were perverse and were arrived at without proper appreciation of the materials on record. According to him, the charges were not proved and that there was no evidence on record to support the conclusion of the Enquiry Officer.
8. The disciplinary authority, after consideration of the report of the Enquiry Officer as well as the materials on record, by order dated 23.3.98, Annexure V to the writ petition, held that all the charges levelled against the Respondent were proved and imposed a penalty of forfeiture of 50% of his pension. This was so, because pending the proceedings Respondent had retired from the service of the Corporation on 31.7.95.
9. The Respondent being aggrieved by the order of penalty, preferred an appeal before the Chairman, Standing Committee, E.S.I. Corporation reiterating his contentions and prayed for setting aside the order of penalty.
10. By the order dated 12.11.99 (Annexure 7) to the writ petition, the appeal was dismissed and the order of penalty was upheld holding that all the charges levelled against the Respondent had been proved. Situated thus, the Respondent approached the Tribunal with an application u/s 19 of the Administrative Tribunal Act, 1985 assailing the order of penalty as well as the order of the appellate authority dismissing the departmental appeal filed by him. The learned Tribunal after considering the pleadings of the parties and the materials on record allowed the application and set aside the impugned orders dated 23.3.98 and 12.11.99 mentioned hereinabove and directed release of full retiral benefits to the Respondent including arrears with utmost promptitude. The Corporation is before us being dissatisfied with the judgment and order of the learned Tribunal.
11. Mr. B.R. Dey, learned Counsel for the Petitioners in his short and precise argument, contended that the reasoning recorded by the Tribunal to hold that the findings of the Enquiry Officer with regard to the Charge No. 1 and II were perverse are not sustainable in law and on facts. He argued with reference to charge No. 1 that the conclusion of the learned Tribunal that in absence of any evidence on record that the Circulars dated 28.2.76 and 25.2.78 had been received by the local office where the Respondent was posted at the relevant time, the findings of the enquiry officer that it was a matter of common knowledge for those working in the local office, was based only on assumption, was not correct. According to the learned Counsel, the said two Circulars clearly established that the disease "Cervical Spondalites/Ankalysing Spondalites was not included in the E.S.B. list and, therefore, the Respondent by approving and passing the Extended Sickness Benefit (ESB) payments in respect of that disease to Shri Sunil Ch. Bora committed a misconduct and, therefore, the findings of the enquiry officer, the disciplinary authority and the appellate authority were legal and justified. The learned Counsel maintained that the abovementioned circulars were despatched to all Local Offices of the Corporation and the Respondent was expected to be aware of the same.
12. With regard to the finding of the learned Tribunal relating to Charge No. II, the learned Counsel argued that having regard to the nature of the charges, the evidence of the Handwriting Expert, P.W. 6 was decisive and, therefore, the conclusion of the learned Tribunal that the evidence of the said witness was in the nature of "opinion evidence" which, in absence of any other supporting evidence was not conclusive, was not tenable in law and is liable to be interfered with by this Court. The learned Counsel did not advance any argument with regard to findings and reasonings recorded by the Tribunal relating to charge No. III against the Respondent. In support of his submission learned Counsel for the Petitioners placed reliance on a decision of the Apex Court, reported in 2001 (3) SLJ 188, Karnataka State Transport Road Corporation-Appellant v. B.S. Holli Katti-Respondent.
13. In reply, Mr. B.K. Sharma, learned Counsel for the Respondent submitted that the conclusions reached by the Tribunal are following a correct and proper appreciation of the materials on record and do not suffer from any legal infirmity so as to warrant, interference therewith in exercise of the powers of this Court under Article 226 of the Constitution of India. He argued that having regard to the categorical finding of the Enquiry Officer that the disciplinary authority could not produce the acknowledgment receipt from the concerned local office about the receipt of the Circulars dated 28.2.76 and 25.2.78, the very basis of the Charge No. I against the Respondent became non-existent and, therefore, the conclusion of the learned Tribunal with regard to the said charge as recorded in the impugned judgment and order is unassailable. He further argued, that the disciplinary authority while attempting to establish Charge No. II against the Respondent held back the material evidence in the proceeding that the insured person Sri S.P. Das had admitted before the Vigilance Officer that he had received the amount of Rs. 195/- after duly signing the connected documents. According to the learned Counsel, this was apparent from the letter No. 41.C./11/12/3/ 77 Vig. dated July/15/20-1994 issued by the Vigilance Officer, Calcutta, a photocopy of which had been supplied to the Respondent. The learned Senior Counsel argued that the disciplinary authority wholly relied on the evidence of P.W. 6, Sri S.C. Gupta A.G.E.Q.D., Calcutta in support of allegation of forgery against the Respondent and in absence of any other supporting evidence to that effect the learned Tribunal was perfectly justified in concluding that the said charge was not proved.
14. The defence taken by the Respondent against the Charge No. 1 as can be culled out from the materials on record is that the insured person Sunil Chandra Bora had submitted certificates from the Insurance Medical Officer, E.S.I. Scheme Dispensary, Tezpur indicating diagnosis of Ankylosing Spondalitis/Servical Spondalities" and he was referred to the Medical Referee for confirmation of the disease. The Medical Referee confirmed the disease vide his report dated 24.1.90 and 19.1.91. His further defence was that the said disease was included in the Local Office Manual Vide E.S.I. Corporation resolution dated 14.2.70. His categorical stand was that the Corporation resolution dated 28.2.76 and 25.2.78 had neither been supplied to him nor to the Local Office, Tezpur till 4.12.91 and, therefore, he had no knowledge about those instructions at the relevant time.
15. The Enquiry Officer while dealing with the said charge concluded the Corporation''s resolution dated 28.2.76 and 25.2.78 were duly circulated by the R.O., E.S.I.C. Guwahati to all the Local Offices of North Eastern Region and though it was true that the disciplinary authority was not able to produce the acknowledgment receipt from the concerned local office, it was a mere technical and, therefore, the charged officer''s plea that he had not received the instructions did not hold water. The disciplinary authority simply toed the line with the Enquiry Officer on this aspect of the matter and there has been no independent consideration by the said authority vis-a-vis the materials available on record.
16. As the charge against the Respondent was that of misconduct for violating Rule 3 of the C.C.S.(Conduct) Rules, 1964, we are of the view, that it was incumbent on the part of the disciplinary authority to prove that the two Circulars mentioned hereinabove, did not include the disease "Ankolysing Spondylitis/Cervical spondylitis" in the E.S.B. list of to establish the said charge against him. We have examined the reasons assigned by the learned Tribunal in support of its finding with regard to the Charge No. 1 and we are of the opinion that the learned Tribunal had appreciated the facts and materials on record in the correct perspective and therefore, the said finding cannot be faulted with.
We wish to deal with the decision relied upon by the learned Counsel for the Petitioners at this stage. In that case, the charge against the Respondent therein, who was a Bus Conductor, was that he had collected at a particular trip of the Bus Rs. 2.25 as fare from each of the 35 passengers, but had issued tickets of the denomination of Rs. 1.75 only. In the facts of that case, the Apex Court while noticing that the Respondent had been in service as a Conductor for nearly 22 years, held that it was difficult to believe that he did not know what was the correct fare which was to be charged holding that the principle of res ipsa loquitur was applicable to the facts of the case. The Apex Court concluded that charging of 50 p. per ticket less from as many as 35 passengers could only be to get financial benefits.
17. This decision, the learned Counsel for the Petitioners cited in support of his submission that in the instant case also it can very well be accepted that the Respondent had the knowledge and information of the Circulars dated 28.2.76 and 25.2.78 and that, therefore, his action of approving and passing E.S.I, payments in contravention of the said circular was a gross misconduct.
18. Comparing the facts of the case covered by the above decision and those in the case in hand we are unable to upheld the said contention of the learned Counsel for the Petitioner. We are of the view, that the facts arc clearly distinguishable and keeping in view the nature of the charge, the above decision is of no assistance to the Petitioners.
19. The discussion available in the Enquiry Officer''s Report with regard to Charge No. II clearly reveals that the Enquiry Officer wholly relied on the evidence of the hand writing expert to come to the conclusion that the said charge was proved against the Respondent. The Enquiry officer did not at all taken into consideration the stand taken by the Respondent that there was no complain from the insured person in that regard and, on the other hand, the insured person Sri S.R. Das had admitted before the Vigilance officer that he had received the amount of Rs. 195/- for misappropriating which the Respondent had been charged. No attempt was also made by the Enquiry officer to verify the correctness of the stand of the Respondent from the letter dated 15-20/94 said to have been issued by the Vigilance Officer, Calcutta, a photocopy of which had been supplied to the Respondent as claimed by him. It is noticeable that the disciplinary authority did neither examine Sri S.R. Das nor had proved the aforementioned letter in the proceedings.
20. The evidence of P.W. 6, the handwriting expert is in the form of opinion evidence and is to be used for appreciating the other materials on record. In the instant case, admittedly there is no other evidence in support of Charge No. II. In that view of the matter, having regard to the categorical stand of the Respondent that the insured had received the amount alleged to have been misappropriated by him (Respondent) and further, his (insured) admission about such payment before the Vigilance Officer, we do not consider that the finding of the Tribunal in this regard to be so erroneous so as to justify interference therewith in exercise of our power of judicial review. We have also perused the order of penalty and the order of the appellate authority in the departmental appeal. We do not see that the said authorities had relied upon any additional material in support of the said charge which the learned Tribunal had left out of consideration. As generally, an expert opinion is to be received with caution and before acting on it all other relevant evidence must be considered. We are of the view, that in the above conspectus of facts, the conclusion of the learned Tribunal with regard to Charge No. II being a plausible one, it does not call for any interference in the instant proceeding.
21. As noticed hereinabove, the learned Tribunal has recorded its findings on a detailed consideration of the materials on record and has supported the same with adequate cogent and convincing reasons. No error of law apparent on the face of the record is discernible in coming to the findings. No perversity in the matter of appreciation of the evidence is indicated. The views expressed by the learned Tribunal are in the facts of the case, plausible and cannot be dubbed as patently bad and untenable. We are, therefore, of the firm opinion, that no case has been made out by the Petitioners justifying interference with the impugned judgment and order in exercise of our power of judicial review under Article 226 of the Constitution of India.
22. The petition, therefore, fails and is accordingly dismissed. Considering the facts and circumstances of the case, there would be no order as to costs.
