Saju S Dominic vs Uoi And Ors
2019 Latest Caselaw 2539 Del

$~2
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Reserved on:       24.04.2019
                                          Pronounced on:     15.05.2019

+      W.P.(C) 1384/2016 & CM APPLN. 18244/2018 & 31130/2018
       SAJU S DOMINIC                                       ..... Petitioner
                     Through              Mr.Saju    Jakob,        Adv.      with
                                          Mr.Ravinder Kumar, Mr.Abhishek
                                          Jaiswal & Ms.Lily Thomas, Advs.

                                 versus

       UOI AND ORS                                          ..... Respondents
                          Through         Mr.Sachin Datta, Sr. Adv. with
                                          Mr.Alok Sinha, Mr.Rajiv Sinha &
                                          Ms.Rijuta Mohanty, Advs. for CCI.
                                          Ms.Tatini Basu, Adv. for R-4.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                              JUDGMENT

1. Vide the present petition, the petitioner seeks direction thereby setting

aside the order dated 24.09.2015 passed by the Appellate Authority of

respondent no.2 Corporation in appeal against the order dated 07.08.2015

issued by the disciplinary authority, respondent no.3.

2. The brief facts of the fact are that on 17.05.2014, an employee, Shri

Ashok Gautam got admitted in M/s Max Balaji Medical Centre, Patparganj,

Delhi at around 3:00 a.m. due to cardiac disease and underwent cardiac

operation on an urgent basis due to the life threatening situation of said

employee. Before admission, the employee had informed to the C&MD

(Respondent no.6) who gave a telephonic approval for admission in Max

Balaji Hospital, a non-empanelled hospital, being an emergency at 03.00

am. On 18.05.2014, the spouse of the employee requested for an advance of

₹3.25 lakhs and request was considered and approved by the C&MD on

recommendations of Director-HR (Respondent No. 3), the Director-

Finance, GM-HR (the Petitioner herein). On 19.05.2014, the respondent

No. 3, who was the then HR Director, now CMD since 01.10.2014

recommended the proposal on 19.05.2014 by endorsing "advance followed

by reimbursement will be as per rules of the company". On 27.06.2014, the

employee who was discharged by the hospital submitted his medical bills

with a request to sanction the same mentioning the emergency situation in

which he was rushed to a non-empanelled hospital. On 30.06.2014, the

petitioner forwarded the bills to the medical consultant for "considering the

case on merit and to do the needful." The medical consultant of the

petitioner endorsed it as "we may process for relaxation please". The

Admin. Department forwarded the bills to the Finance Department and the

Finance Department bifurcated a sum of ₹0.41 lakhs as admissible as per

CCI medical rules and recommended for seeking special approval of ₹3.75

lakhs and returned the bills back to Admin. Department on 04.07.2014.

3. It is the further case of the petitioner that on 07.07.2014 based on the

recommendations of Finance Department, an inter departmental note was

initiated by the Administration Department to approve the disallowed

medical expenses of ₹3.75 lakhs on humanitarian grounds. The DM

Administration initiated and routed through Senior Manager (Marketing &

Administration) GM-HR, Medical Consultant was submitted for approval of

Director (HR). It was also put up to the petitioner (GM-HR) on 07.07.2014

who endorsed the same and forwarded to the medical consultant. The said

consultant on 09.07.2014 forwarded it to CMD as Director-HR was on tour.

Accordingly, the CMD (Respondent no.6 herein) exercised his discretionary

powers under clause 4.3.9(ii) and allowed relaxation of disallowed amount,

which he admitted in his counter affidavit.

4. Learned counsel appearing on behalf of petitioner submits that the

then CMD (Respondent no.6) retired on 30.09.2014 on attaining the age of

superannuation and on 01.10.2014, the Director-HR, (Respondent No.3)

took charge as CMD. On 24.11.2014, the CMD instructed the HOD

(Finance) to indicate the provisions of CCI medical rules in dealing with

pending medical cases. On 28.11.2014, HOD (Finance) provided rule

position on reimbursement of medical incorporating the powers of CMD to

provide relaxation in deserving cases. The CMD directed HOD (Finance) to

examine the case of Shri Gautam, considering the rules position provided.

Accordingly, HOD (Finance) examined the entire case in detail and

observed in its report dated 01.12.2014 that the process of relaxation

provided to Shri Gautam by the then CMD was as per the rule position and

also within the relaxation power of CMD. Thereafter, on 17.02.2015, the

CMD directed to follow the rules of the company and Director (Finance)

also concurred with it on 20.02.2015. However, on 30.04.2015, TSO to

CMD instructed HOD (Finance) to submit the pending medical bills

pertaining to Shri Dillip Majumdar for approval of CMD (Respondent

No.2). On 05.05.2015, HOD informed that vide note dated 25.09.2014, Dy.

Manager-Administration put up seven cases seeking relaxation from CMD

and the case of Shri Majumdar was also there. As per rules, only the CMD

can provide the relaxation in case of deserving and exceptional cases and the

then CMD did not provide relaxation to those seven cases. HOD further

informed that the case of Shri Gautam had been examined by the then CMD

(Respondent No.6) considering the essentiality and being a deserving case.

This has been concurred by Director-Finance also.

5. Learned counsel for the petitioner further submitted that on

07.05.2015, CMD (Respondent No.2) instructed to review the case of Shri

Gautam by adopting CGHS and AIIMS rates. On 03.06.2015, HOD

(Finance) forwarded the note sheet to the petitioner requesting to explore the

possibility of implementing the desire of CMD to review the case of Shri

Gautam by adopting CGHS and AIIMS rates.

6. On 10.06.2015, the Government of India called for selection for the

post of Director-HR with the respondent company, CCI. The petitioner who

was the only eligible internal candidate submitted his application on

15.06.2015 to the respondent no.2 for the post of Director-HR with the

respondent company for onward submission to PESB. On 18.06.2015, the

petitioner requested to inform as to whether the current CMD can review the

decision taken by the previous CMD and further requested to provide

previous practice, if any, in that regard. The petitioner also requested the

HOD (Legal) to provide legal advice on the matter also. However, the

respondent no.3 issued memo No. CCI/VIG/CO/269/15/6005 dated

23.06.2015 to the petitioner. The respondent no.2, on 25.06.2015, forwarded

the application for the post of Director-HR of the petitioner to respondent

no.1 after issuance of memo dated 23.06.2015. Accordingly, on 29.06.2015,

the petitioner submitted his reply to respondent no.3 to the memo issued by

him mentioning the sanctioning of medical advance and reimbursement was

done as per rules of the company. It was further mentioned that the then

CMD (Respondent No.6) allowed relaxation for the non-reimbursable

amount as per powers conferred on CMD according to rule 4.3.9(ii) of CCI

Medical Reimbursement Rules. On 02.07.2015, the petitioner submitted his

supplementary reply to Respondent no.3 reiterating the rule position and the

entire process was conducted by an inter-departmental team consisting of

Administration Department, Finance Department and Medical Officer.

7. Learned counsel for the petitioner further submitted that without

considering the position, the punishment of withholding of two increments

for a period of two years without cumulative effect imposed by respondent

no.3 on 07.08.2015. Being aggrieved, the petitioner filed appeal and the

same was rejected by the Board of Directors under the Chairmanship of

Respondent No.3. Apart from him, the Joint Secretary and the Government

Nominee Director were the members of Board of Directors.

8. Learned counsel further submitted that although Shri Gautam got

admitted in the hospital subsequent to the directions of CMD, however,

while allowing the relaxation, the respondents carefully considered the

notings and observations of Administration Department, Finance

Department, Medical Consultant of CCI and Medical Specialist who

attended the employee. Also considered the circumstances and merits of the

case as to whether there was an emergency as claimed and details of

treatment. Apart, also considered whether the employee observed the

procedures, whether the medical bills were processed as per the laid down

rules and also the compelling emergent medical condition of cardiac ailment

for taking a cogent decision.

9. On the other hand, learned counsel appearing on behalf of respondent

nos. 2, 3 & 5 submitted that a minor penalty of withholding of his two

increments for a period of 2 years, without cumulative effect vide order

dated 07.08.2015 was imposed upon the petitioner. The said order has been

passed as per the procedure laid down under rule 29 of the Conduct,

Discipline and Appeal Rules. The petitioner has been given full opportunity

to defend himself and the speaking order has been passed by the

Disciplinary Authority by talking into account all the relevant records and

submissions made by the petitioner. The appeal dated 04.09.2015 filed by

the petitioner against the order dated 07.08.2015 was submitted to the Board

of Directors in its 325th meeting held on 24.09.2015. The detailed analysis

of the case as well as the issues raised in the appeal were also submitted to

the Appellate Authority and the said Authority after a careful consideration

of all the facts and issues dismissed the appeal of the petitioner and endorsed

the decision of the DA with regard to imposing of the minor penalty. He

further submitted that though respondent no.3 who participated in the appeal

proceedings would not have participated but he submitted that the said

respondent has already been retired from the service and a new incumbent is

the present CMD. Thus, this court should not exercise its power under

Article 226 of the Constitution of India as the Appellate Authority. If this

court finds faults in the decision of the respondents, the case may be sent

again to the appellate authority and a fresh view can be taken upon the case

of the petitioner. To strengthen his argument, counsel for the respondents

has relied upon a case of Amar Nath Chowdhury vs. Braithwaite and

Company Ltd. & Ors.: 2002 2 SCC 290.

10. I have heard learned counsel for the parties. It is not in dispute that the

power of relaxation was exercised by Respondent no. No.6 herein who was

the then CMD of the Respondent no.2. As per CCI Medical Attendance

Rules clause no. 4.3.9 (ii) provides that "in deserving and exceptional case,

the chairman and managing director has the power of relax the provision of

any of the rules to the extent considered necessary".

11. The said respondent no.6 has filed its counter affidavit whereby stated

that at around 3.00 am on 17.05.2014, he had been informed by Shri Ashok

Gautam over phone about the severe chest pain and considering the medical

emergency, he instructed him to obtain medical support and treatment from

any adjoining hospital immediately. Thereafter, the spouse of employee

requested the respondent no.2 for an advance payment of ₹3.25 lakhs to be

released to the hospital. The request letter was accompanied with letter

dated 17.05.2014 by the Senior Consultant Cardiologist from Max Hospital.

The request was considered on the ground that treatment expense was a

huge amount beyond the capacity of employee or his family to pay within 2-

4 days and there was no empanelled hospital for employees who are residing

in Trans Yamuna area. On receipt of request of the spouse of Shri Ashok

Gautam and since Respondent no. 6, being the competent authority had

already given a go-ahead for treatment in any nearby hospital and Max

Hospital being a non-empanelled hospital, the Administration Department

initiated an internal memo for release of advance for medical expenses.

12. The petitioner being the GM-HR, while recommending the proposal

for payment of advance to the employee did not raise any objection for

taking treatment from a non-empanelled hospital. Had the petitioner raised

any objection for taking treatment from a non-empanelled hospital that too

in respect of dealing with the lifesaving situation of an employee residing in

an area where no empanelled hospitals were available, the same would have

been against the professional ethics and also in violation of his

responsibilities to protect the life and interest of the employees of the

Respondent corporation. Though the petitioner did not specifically mention

anything about CCI Medical Rules but the note dated 18.05.2014 itself

provided detailed intimation that Max Balaji Medical and Diagnostic

Research Centre, Patparganj was not an empanelled hospital and no credit

facility had been available to the patients.

13. Respondent no.6 (the then CMD) further submitted that was not the

situation to go into the rules and eligibility conditions which could be taken

care at the stage of reimbursement. He admitted that the petitioner who came

to know about the emergency admission and operation of the employee on

receipt of request for getting medical advance of ₹3.25 Lakhs had raised a

query as to why such serious matter was not informed to him being the Head

of the Department and the General Manager (HR).

14. It is pertinent to mention here that Respondent no.6, the then CMD

admitted in his counter affidavit that although Shri Ashok Gautam got

admitted in the hospital subsequent to his direction, however, he (respondent

no.6) carefully considered the noting and observations of the Administration

Department, Finance Department and Medical Consultant of the respondent

corporation. Since the employee was compelled to get admitted in Max

Balaji Medical and Diagnostic Research Centre, Patparganj in an emergent

medical condition of cardiac ailment and also bearing in mind the fact that

no empanelled hospital was available in trans Yamuna area where the

employee resides, the request of the employee being a deserving and

exceptional case, the relaxation was provided as per the powers conferred

upon him being the Chairman and Managing Director of the respondent

company.

15. In addition to above, vide note dated 25.09.2014 initiated by General

Administration Department, consulting pending medical claims lying for

want of relaxation by the competent authority CMD as per CCI Medical

Rules along with analysis of Finance Department including Director

(Finance) in respect of CCI Medical Rules and the relaxation power of

Chairman and Managing Director duly submitted to the CMD. The aforesaid

document includes detailed representation examined by Finance Department

including Director (Finance) on the note sheet initiated by CMD, Secretariat

in the matter of sanction or medical claim and relaxation provided to Shri

Ashok Gautam by the previous CMD.

16. As per Annexure A which is at page 476 of the petition, the proposal

was put up by the Deputy (O) Administration duly endorsed by DM

(Admin), S.M (Admin), GM (HR), Medical (Consultant) mentioning D

(HR) on tour, directly to CMD and then CMD approved the proposal

considering the jurisdiction given by the Admin Department. The said

proposal was attached by the claimant with his claim and considering the

relaxation power of CMD in deserving and exceptional cases as per clause 9

(i) of CCI Medical Rules and justification given by Admin Department in

favour to treat the case as deserving and exceptional duly admitted by CMD

in speaking approval, finance department has released the payment.

17. Whereas the disciplinary authority imposed minor penalty of

withholding of two increments for a period of two years without cumulative

effect vide order dated 07.08.2015. Being aggrieved, the petitioner filed

appeal and the same was dismissed by the Board of Directors in its 325th

meeting held on 24.09.2015. The fact remains that on 19.05.2014, the

respondent no.3, who was the then HR Director, now CMD since

01.10.2014 recommended the proposal on 19.05.2014 by endorsing

"advance followed by reimbursement will be as per rules of the company."

18. On becoming respondent no.3 as CMD not only initiated the

proceedings against the petitioner but also participated as appellate authority

in the Board of Directors in its 325th meeting held on 24.09.2015 which is

illegal and against the service jurisprudence because he was instrument in

recommending the proposal dated 19.05.2014 and thereafter initiated

proceedings against the petitioner and then set in an appeal proceedings in

the Board of Directors.

19. Though it is settled position of law that the courts should not interfere

in the decision taken by the disciplinary authority and the appellate authority

unless it is illegal, perverse and without affording of opportunity being heard

or the punishment is with malafide or disproportionate to the misdemnour

committed by the charged officer. In the present case, the relaxation was

granted by the then CMD (respondent no.6 herein) by exercising his powers

which he has admitted in its counter affidavit filed before this court.

Therefore, there was no basis in imposing the penalty upon the petitioner.

Thus the order dated 07.08.2015 passed by the disciplinary authority and

order dated 24.09.2015 passed by the appellate authority are perverse and

liable to be quashed and set aside.

20. In view of the above discussions and in the facts and circumstances of

the case, I hereby set aside the order dated 07.08.2015 passed by the

disciplinary authority and order dated 24.09.2015 passed by the appellate

authority.

21. The petition is allowed and disposed of, accordingly.

CM APPL. Nos. 18244/2018 & 31130/2018

22. In view of the order passed in the present writ petition, these

applications have been rendered infructuous and are accordingly, disposed

of.

(SURESH KUMAR KAIT) JUDGE MAY 15, 2019 ms/ab