Madras High Court
Employees Provident Fund Organization vs V.Vasudevan on 18 November, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP.No.27477 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
W.P.No.27477 of 2022
and W.M.P.No.26699 of 2022
1.Employees Provident Fund Organization
Rep. By its Chairman
Central Board of Trustees
No.14, BhikajiCama Place,
New Delhi – 110 066.
2.The Central Provident Fund Commissioner
No.14, BhikajiCama Place,
New Delhi – 110 066.
3.The Regional Provident Fund Commissioner – II (HRM-III)
No14, BhikajiCama Place,
New Delhi – 110 006. ...Petitioners
-vs-
1.V.Vasudevan
2.The Registrar,
Central Administrative Tribunal,
Chennai Bench,
Chennai – 600 104. ...Respondents
https://www.mhc.tn.gov.in/judis
1 / 24
WP.No.27477 of 2022
PRAYER: Writ petition filed under Article 226 of Constitution of India
to issue a Writ of Certiorari, calling for the records relating to Impugned
Order dated 08.06.2022 passed by Second Respondent pertaining to
OA/310/01083/2015 and quash the same.
For Petitioners : Mr.P.K.Panneer Selvam
For Respondent : Mr.V.Vasudevan - R1
Party – in – person
R2 – Tribunal
************
ORDER
(The Order of the Court made by Justice M. JOTHIRAMAN)
Under assail is Order dated 08.06.2022 passed in OA.No.1083 of
2015 on the file of the Central Administrative Tribunal, Chennai Bench.
The unsuccessful respondents in OA, have preferred the present writ
petition before this Court.
2. The first respondent who was working as an Enforcement
Officer in petitioner's organization was arrested on 03.07.2008, in respect
of criminal offence, which was under investigation and remanded in
judicial custody for a period exceeding 48 hours. By order dated
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23.07.2008, the first respondent was placed under suspension.
Subsequently, the above said suspension was revoked on 01.04.2009 by
the competent authority. Meanwhile, the criminal case was instituted by
CBI against the first respondent in C.C.No.1 of 2009 for the alleged
offence under Section 13(2) of Prevention of Corruption Act, 1988 on the
file of IX Additional Special Judge for CBI cases, Chennai. By judgment
dated 28.10.2011, the criminal case in C.C.No.1 of 2009 as ended in
acquittal.
2(i). Meanwhile CBI registered another case against the first
respondent and his wife in C.C.No.1 of 2010 for the alleged offences
under Section 13(2) read with Section 13(1)(e) of Prevention of
Corruption Act, 1988 for accumulating assets disproportionate to known
sources of income.
2(ii). The first respondent submitted a representation dated
17.11.2011 to the second petitioner seeking regularization of the period
of suspension as a duty period for all purpose and also for consequential
service benefits in the light of the order of acquittal. No action was taken
by the petitioners, thereafter the first respondent filed O.A.No.999 of
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2013 before the Central Administrative Tribunal, for seeking a relief of
regularization of the period of suspension as duty period with other
consequential benefits. While the above said representation was pending
before the authorities concerned, the Tribunal at the stage of admission
itself disposed of the O.A.No.999 of 2013 vide order dated 25.07.2013
directed the petitioners to consider the representation dated 17.11.2011
and pass orders on merits in accordance with law and as per rules within
a period of two months from the date of receipt of a copy of that order.
2(iii). Thereafter, on 18.02.2014, the second petitioner has passed
an order stating that since the other criminal proceedings in C.C.No.1 of
2010, as well as the departmental proceedings initiated subsequently in
the year 2011 are pending against the first respondent for
disproportionate assets, no action can be taken to regularize the period of
suspension. It is also stated that the acquittal by the criminal Court is on
procedural grounds and therefore it cannot be stated that the suspension
is wholly unjustified.
2(iv). Aggrieved over the order dated 18.02.2014, the first
respondent has preferred an appeal under Rule 19 of the EPF Staff (CC
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& A) Rules, 1971. The third petitioner has rejected the same on
05.06.2015 stating that there is no provision to prefer the said appeals, as
it was not passed under EPF (CC & A) Rules.
2(v). In view of the pendency of the criminal case in C.C.No.1 of
2010, departmental proceedings were initiated by the petitioners against
the first respondent for having concealed transactions of immovable and
movable properties and in the name of his family members and not
reporting them. After conducting due enquiry, the competent authority
has passed an order of compulsory retirement of first respondent with
effect from 20.01.2017. By judgment dated 13.06.2017 in C.C.No.1 of
2010 the first respondent and his wife were found guilty and sentenced to
undergo two years imprisonment and pay a fine of Rs.50,000/-.
3. Aggrieved over the orders passed by the petitioners dated
18.02.2014 and 05.06.2015, the first respondent has preferred
O.A.No.1083 of 2015. The Tribunal vide order dated 08.06.2022
quashed and set aside the orders, dated 18.02.2014 and 05.06.2015 and
“it is declared that the applicant is entitled to treat the period of
suspension in respect of which orders were passed on the basis of his
having been kept under custody for a period of 48 hours as of duty and
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consequently, the said period has to be reckoned for all purposes i.e.,
for payment of pay and allowances, for qualifying service of promotion,
retiral benefits and the like. Necessary orders are to be passed
accordingly by the competent authority.” Aggrieved over the above said
Tribunal order, the present writ petition has been preferred by the
petitioners / organization.
4. The learned counsel appearing for the petitioners would submit
that the Tribunal failed to consider the fact that the criminal case of
accumulation of disproportionate assets against the first respondent and
his wife in C.C.No.1 of 2010 was pending at the time of passing of order
dated 18.02.2014 by the second petitioner. In the order, it is clearly
indicated that the charge of corruption had not been completely washed
out and disciplinary proceedings also pending. The acquittal in C.C.No.1
of 2009 vide judgment dated 28.02.2011 on the basis of technical aspect
does not have merit in the eye of law for the purpose of regularization of
his suspension period.
5. Per contra, the first respondent Mr.V.Vasudevan, appeared as
party-in-person would submit that the pendency of the subsequent
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criminal proceedings in C.C.No.1 of 2010, as well as departmental
proceedings initiated on the allegation of having disproportionate assets
in the year 2011 does not have any bearing, for the regularization of the
suspension period which arose due to previous criminal proceedings in
C.C.No.1 of 2009, which was also ended in acquittal. The period of
suspension is prior to the year 2010 and therefore no bearing, whatsoever
the issue of regularization of the suspension period. He would submit
even though in his representation dated 17.11.2011, he had sought for the
reliefs of regularization of suspension period, promotion, TA – DA for
attending the Court cases and Advocate Fees reimbursement. Now, he is
restricting the claim only with regard to the regularization of suspension
period and the same may be confirmed as per the direction issued by the
Tribunal.
6. We have considered the rival submissions made on either side
and perused the available records.
7. It is not dispute that the first respondent, while working as
Enforcement Officer in the petitioner's organization was arrested on
03.07.2008, in respect of criminal offence, which was under investigation
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and remanded in judicial custody for a period exceeding 48 hours. On
the said basis, by an order dated 23.07.2008 the first respondent was
deemed to be placed under suspension with effect from 03.07.2008.
Subsequently vide order dated 01.04.2009 suspension was revoked.
Meanwhile criminal proceedings initiated in C.C.No.1 of 2009 by CBI for
alleged offence under Section 13(2) of the Prevention of Corruption Act,
and vide judgment dated 28.10.2011, acquitted the first respondent. As
against the judgment of acquittal, the petitioners have not preferred any
appeal. By representation dated 17.11.2011, the first respondent seeks
the following reliefs :-
“a. That the period of suspension of the
applicant may be regularised under the relevant rules
with full back wages and all service benefits.
b. That applicant may be considered for
promotion to the post of Assistant PF Commissioner as
his junior has already been promoted and fix his
seniority above to his immediate junior.
c. That TA & DA for attending the Court cases at
Chennai may be reimbursed as the distance between
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the Madurai and Chennai is around 420 kilometers
and the bus fare costs around Rs.900/- per to and fro
charges.
d. That advocate fee being Rs.1.5 lakhs be
reimbursed as the cost of litigation.”
8. While pending the said representation, the first respondent had
filed O.A.No.999 of 2013, which was disposed of by the Tribunal at the
stage of admission itself by directing the petitioners to pass an
appropriate orders. The 2nd petitioner has considered the representation
dated 17.11.2011 and rejected vide order dated 18.12.2014, citing the
reason that the judgment of the criminal Court acquitting, the first
respondent was purely, on technical grounds.
9. On perusal of order dated 18.02.2014 passed by the second
petitioner reveals that the request for regularization of the period of
suspension from 03.07.2008 to 31.03.2009 is not accepted on the
following grounds:
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“i. The suspension was revoked vide order no.
Vig. X (20)2008 dated 01.04.2009 by the CPFC,
being the disciplinary authority for the post of
EO/AO. While revoking the suspension vide order
no. Vig. X(20)2008 dated 01.04.2009, the then
competent authority has chosen not to specifically
treat the period as on duty.
ii. The Criminal Charge for having
disproportionate assets bearing No. CC.1/2010
before the CBI court is still pending, which indicates
that the charge of corruption has not been completely
washed off.
iii. The departmental proceedings for major
penalty for having disproportionate assets is also
going on which indicates that the applicant has not
been completely absolved of the charges of
corruption.
iv. The applicant has not revealed the fact
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before Hon'ble CAT, Chennai Bench in
OA.No.999/2013 that a criminal case bearing CC
No.1/2010 is pending in CBI Court and a charge
sheet under rule 10 of EPF(CCA) Rule, 1971 has
been issued on 07.09.2011, against him neither he
has mentioned these facts in his representation.
DoP&T vide OM No.142/5/84-AVD.I dated
20.06.1986 has clarified that “In a case where, after
investigation by the CBI, a prima facie case is made
out and pursuant thereto Regular Departmental
Action for imposition of a major penalty has been
instituted against a Government servant and a
charge sheet has been served upon him alleging
specific act of corruption or gross misconduct
involving moral turpitude; immediately after the
charge sheet has been served upon the Government
servant.”
v. Para 16, 17 and 28 of the order dated
28.10.2011 passed by the Additional Special Judge,
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CBI indicated that the main reason of the failure of
the prosecution was on the procedural ground.
These remarks of the CBI court read with the charges
levelled against the applicant in CC 1/2010 in the
disproportional assets case are reasonable ground to
hold that suspension was justified and the benefits
under FR 54B(3) read with FR 54B(4) is not
available to the applicant.”
10. Aggrieved over the above said order dated 18.02.2014 the first
respondent has preferred an appeal under 19 EPF Staff (CC & A) Rules,
1971, before the first petitioner. The first petitioner has passed the
following order on 05.06.2015 :-
“In this connection, it is stated that the appeal
filed under Rules 19 of the Employee Provident Fund
Staff (CC & A) Rules, 1971 against order dated
18.02.2014 passed by the Central PF Commissioner
regarding regularization of period of suspension and
attendant benefits thereon has been examined in
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compliance with the order of the Hon'ble CAT,
Chennai Bench OA No.999/2013 dated 25.07.2013.
That order was not passed against and disciplinary
proceedings issued under EPF (CC & A) Rules.
Since, the order against which Sh.V.Vasudevan
is appealing is not any order passed under EPF Staff
(CC & A) Rules, the process and provisions of appeal
under EPF (CC & A) Rules is not applicable in his
case. He may be informed accordingly.”
11. On perusal of records reveals that the revocation of suspension
order was passed in exercise of the powers conferred by Rule 6(5)(a) of
the EPF Staff (CC & A) Rules, 1971 vide order No. Vig. X. (20)2008,
dated 01.04.2009. But the competent authority did not take any decision
regarding the regularization of the suspension period wherein it has been
merely stated that the first respondent suspension order stands revoked
with immediate effect.
12. It is relevant to cites the relevant Rules in EPF (CC & A) Rules,
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1971 here under :-
“PART – IV SUSPENSION.
6. (1) The appointing authority or any
authority to which it is subordinate or the
disciplinary authority or any other authority
empowered in that behalf by the Central Govt.
Central Board may place an employee under
suspension:-
(a) where a disciplinary proceedings
against him contemplated or is pending; or
(aa) Where in the openion of the authority
aforesaid, he has engaged himself in activities
pre-judicial to the interest of the security of the
State; or
(b) Where a case against him in respect of
any criminal offence is under investigation,
inquiry or trial;
Provided that where the order of
suspension is made by an authority lower than
the appointing authority, such authority shall
forthwith report to the appointing authority the
circumstances in which the order was made.
(5)(a) An order of suspension made or
deemed to have been made under this rule shall
continue to remain in force until it is modified or
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revoked by the authority competent to do so,
(b) Where an employee is suspended or is
deemed to have been suspended, (Whether in
connection with any disciplinary proceedings or
otherwise), and any other disciplinary
proceeding is commenced against him during the
continuance of that suspension, the authority
competent to place him under suspension may,
for reasons to be recorded by him in writing,
direct that the employee shall continue to be
under suspension until the termination of all or
any of such proceedings.
(c) An order of suspension made or
deemed to have been made under this rule may
at any time be modified or revoked by the
authority which made or is deemed to have made
the order or by any authority to which that
authority is subordinate.”
“19. ORDER AGAINST WHICH APPEAL
LIES:- Subject to the Provisions of rule 18, an
employee may prefer an appeal against all or
any of the following orders, namely --
(i) an order of suspension made or deemed
to have been made under rule 6;
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(e) determining his pay and allowances--
(i) for the period of suspension, or
(ii) for the period from the date of his
dismissal removal, or compulsory retirement
from service or from the date of his reduction to
a lower grade or post, time scale or stage in a
time scale of pay, to the date of his reinstatement
or restoration to his grade or post; or”
13. It is also relevant to cite Rule 54-B.1 to 7 of Fundamental Rules
here under :-
“54-B- 1. (1) When a Government servant who has
been suspended is reinstated or would have been so reinstated
but for his retirement on superannuation *or compulsory
retirement while under suspension, the authority competent to
order reinstatement shall consider and make a specific order—
(a) regarding the pay and allowances to be
paid to the Government servant for the period of
suspension ending with reinstatement or the date
of his retirement on superannuation *or
compulsory retirement, as the case may be; and
(b) whether or not the said period shall be
treated as a period spent on duty.
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(2) Notwithstanding anything contained in rule 53,
where a Government servant under suspension dies before the
disciplinary or the court proceedings instituted against him are
concluded, the period between the date of suspension and the
date of death, shall be treated as duty for all purposes and his
family shall be paid the full pay and allowances for that period
to which he would have been entitled had he not been
suspended, subject to adjustment in respect of subsistence
allowance already paid.
*[G.O. Ms. No. 282, P&AR (FR-Spl.) Department,
dated 12-6-90 – w.e.f. 19th August 1989.)
(3) Where the authority competent to order
reinstatement is of the opinion that the suspension was wholly
unjustified, the Government servant shall, subject to the
provisions of sub-rule (8), be paid the full pay and allowances
to which he would have been entitled, had he not been
suspended :
Provided that where such authority is of the opinion that
the termination of the proceedings instituted against the
Government servant had been delayed due to reasons directly
attributable to the Government servant, it may, after giving
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him an opportunity to make his representation (within sixty
days from the date on which the communication in this regard
is served on him) and after considering the representation, if
any, submitted by him, direct, for reasons to be recorded in
writing, that the Government servant shall be paid for the
period of such delay only such amount (not being the whole)
of such pay and allowances as it may determine.
(4) In a case falling under sub-rule (3), the period of
suspension shall be treated as a period spent on duty for all
purposes.
(5) In cases other than those falling under sub-rules (2)
and (3), the Government servant shall, subject to the
provisions of sub-rules (8) and (9) be paid such amount (not
being the whole) of the pay and allowances to which he would
have been entitled had he not been suspended, as the competent
authority may determine, after giving notice to the
Government servant of the quantum proposed and after
considering the representation, if any, submitted by him in that
connection, within such period which, in no case shall exceed
sixty days from the date on which the notice has been served,
as may be specified in the notice.
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(6) Where suspension is revoked pending finalisation of
the disciplinary or the court proceedings, any order passed
under sub-rule (1) before the conclusion of the proceedings
against the Government servant, shall be reviewed on its own
motion after the conclusion of the proceedings by the authority
mentioned in sub-rule (1), who shall make an order according
to the provisions of sub-rule (3) or sub-rule (5), as the case
may be.
(7) In a case falling under sub-rule (5), the period of
suspension shall not be treated as a period spent on duty unless
the competent authority specifically directs that it shall be so
treated for any specified purpose:
Provided that if the Government servant so desires, such
authority may order that the period of suspension shall be
converted into leave of any kind due and admissible to the
Government servant.
Explanation.—The order of the competent authority
under the preceding proviso shall be absolute and no
higher sanction shall be necessary for the grant of—
(a) extraordinary leave in excess of six
months in the case of a non-permanent
Government servant; and
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(b) leave of any kind in excess of five years
in the case of a permanent Government servant
or an approved probationer.”
14. By invoking the relevant service law applicable to the first
respondent, the petitioners were duty bound to take a decision regarding
regulating the period of suspension. On perusal of records reveals that
the first respondent was placed under deemed suspension from
03.07.2008 to 01.04.2009 consequent to remanded in custody for more
than 48 hours. The first respondent, was acquitted by the competent
Court in CC.No.1 of 2019 vide judgment dated 15.12.2011. The second
case was also registered against the first respondent in 2010 i.e., posterior
to the revocation of the deemed suspension. The second case did not
involve any arrest at the time of initiation of criminal proceedings in
C.C.No.1 of 2010 and as such even if the second case was initiated,
during the currency of suspension since the earlier suspension was under
the provisions of deemed suspension in terms of Sub Rule 2(a) of Rule 6
of EPF staff (CC & A) Rules 1971 and passed in exercise of the powers
conferred by Sub rule (1)(b) of Rule 6 of EPF Staff (CC & A) Rules
1971, the same order cannot be applied or extended to the subsequent
criminal proceedings in CC.No.1 of 2010. It is settled law that an
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employee if suspended citing the initiation of criminal proceedings, which
ultimately ended in order of acquittal in favour of the employee and no
appeal has been preferred and departmental proceedings also ended in
exoneration from the charges then the period of suspension is to be
regularized, as duty period or on leave or otherwise in all purpose
including pay and allowances etc. The criminal proceedings relating to
disproportionate assets was in the year 2010 in C.C.No.1 of 2010 and the
departmental proceedings on the same allegation was initiated in the year
2011 and the period of suspension is prior to 2010. Therefore there is no
bearing whatsoever on the issue of regularization of the said period. In
view of the above legal position the submissions made by the learned
counsel appearing for the petitioners has no force at all. The Tribunal
held that the purpose of rule which envisages an order by the competent
authority as to how the period of suspension is to be treated as an
employee is reinstated of revocation of his suspension, is that the
authority would pass an order after taking into consideration the final
outcome in the event, which went to placing the employee under
suspension. Here no such order has ever been issued after the first
respondent was reinstated on 01.04.2009 and accordingly the impugned
orders dated 18.02.2014 and 05.06.2015 were quashed and set aside.
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We are of the considered view that the order of the Tribunal was justified
and legally sustainable and does not required any interference by this
Court.
15. In the light of the above detailed discussion on considering the
facts and circumstances of the case and in view of the submission made
by the first respondent, we are of the firm view that the first respondent is
entitled for the relief of regularization of suspension period alone and not
entitled to any other reliefs as sought for in his representation dated
17.11.2011. Therefore, this Court directs the petitioners/competent
authority shall pass necessary orders to regularize the period of
suspension, as duty period or on leave or otherwise, as per the service law
applicable to the first respondent, in accordance with law, within a period
of four weeks from the date of receipt of a copy of this order.
16. With the above observations, this writ petition is disposed of.
No costs. Consequently, the connected writ miscellaneous petition is
closed.
(S.M.S.J,) (M.J.R.J,)
https://www.mhc.tn.gov.in/judis
18.11.2024
rna/tsh
Index : Yes / No
Internet : Yes / No
Neutral Citation: Yes / No
To
The Registrar,
Central Administrative Tribunal,
Chennai Bench,
Chennai – 600 104.
https://www.mhc.tn.gov.in/judis
S.M.SUBRAMANIAM.J,
and
M.JOTHIRAMAN.J,
rna/tsh
18.11.2024.
https://www.mhc.tn.gov.in/judis
