IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 WP(C).No. 27156 of 2006(S) -------------------------- OA.726/2003 of CAT,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. THE CHAIRMAN, STANDING COMMITTEE, EMPLOYEES STATE INSURANCE CORPORATION, HEAD QUARTERS OFFICE, PANCHDEEP BHAVAN, KOTLA ROAD, NEW DELHI. 2. THE DIRECTOR GENERAL, E.S.I. CORPORATION, HEAD QUARTERS OFFICE, PANCHDEEP BHAVAN, KOTLA ROAD, NEW DELHI. 3. THE INSURANCE COMMISSIONER, E.S.I. CORPORATION, HEAD QUARTERS OFFICE, PANCHDEEP BHAVAN, KOTLA ROAD, NEW DELHI. 4. THE REGIONAL DIRECTOR, E.S.I. CORPORATION, REGIONAL OFFICE, PANCHDEEP BHAVAN, SWARAJ ROUND NORTH, THRISSUR. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENT(S): --------------- M.S. BALAN, AUDIT INSPECTOR, E.S.I. CORPORATION, REGIONAL OFFICE, PANCHDEEP BHAVAN, SWARAJ ROUND NORTH, THRISSUR, NOW WORKING AS MANAGER GRADE II, E.S.I. BRANCH OFFICE, KILIKOLLUR, KOLLAM-4. ADV. SRI.K.SANIL KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.27156/06 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE ABOVE O.A.NO.726/03 FILED BEFORE CAT DATED 9.8.2003. EXT.P2: TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS DATED 23.1.2004. EXT.P3: TRUE COPY OF THE ARGUMENT NOTE DATED 7.6.06 FILED BY THE RESPONDENTS. EXT.P4: TRUE COPY OF THE ORDER DATED 14.6.06 IN O.A.NO.726/03 OF CAT. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN & P.S.GOPINATHAN, JJ. ------------------------------------------- W.P(C).No.27156 OF 2006 ------------------------------------------- Dated this the 24th day of February, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.This writ petition is filed by the Employees State Insurance Corporation and its officials. They challenge the decision of the Central Administrative Tribunal interfering with the punishments imposed by the establishment on the respondent, an employee. 2.The establishment issued memo of charges on the ground that the respondent received an amount of Rs.2,000/- from one Sundaresan and had returned an amount of Rs.1,000/- out of that. The said Sundaresan was an insured person. An amount of Rs.2,000/- was allegedly received from Sundaresan when an amount of Rs.7,420/- was being paid by the Corporation to the said insured. The next charge against the respondent was that WPC.27156/06. 2 he did not release maternity benefit to Smt.G.Geetha, another insured in a lump sum. Instead, the respondent had restricted the claim of maternity benefit and payments were effected in part, on different dates when there was sufficient fund available for release in a lump, in the local office. 3. The enquiring authority concluded that the demand and receipt of Rs.2,000/- from Sundaresan while making payment of Rs.7,420/- was not proved. However, it was held that the respondent was proved to have returned Rs.1,000/- to Sundaresan and that the said amount was obtained by the respondent earlier from the insured person as a loan. The enquiring authority therefore concluded that the respondent had entered into monetary transaction with a person with whom he was having official dealings. The enquiring authority further found that the respondent had not released the maternity benefit to Smt.G.Geetha in lump sum, though there was sufficient funds at the local office and he paid it in WPC.27156/06. 3 different instalments by making restricted payments. That charge was also proved. 4.With the aforesaid findings, the Regional Director, the competent authority to consider the enquiry report, came to the tentative conclusion that the counts on which the enquiring authority found the respondent to be innocent were not sustainable and therefore, there has to be disagreement. For reasons stated by the Regional Director, the respondent was notified of such disagreement. Reasons for the disagreement was also communicated. The Commissioner concluded that the disagreement stands, though for slightly different reasons. It could also be a case where the Commissioner had merely elaborated the reasons for the disagreement recorded by the Regional Director. Whatever that be, ultimately, the punishment that was handed down was merely reduction of pay by two stages with cumulative effect. WPC.27156/06. 4 5.The Tribunal accepted the contention of the respondent in his original application. It was held that the reasons communicated by the Regional Director were not the reasons on which the disagreement was ultimately upheld and the reasons for disagreement in the penalty order were not communicated to the delinquent. The Tribunal also doubted the authority of the Regional Director to disagree with the findings of the enquiring authority. 6.Having heard the learned counsel for the petitioner establishment and having perused the entire materials on record, including the relevant regulations, we are satisfied that the procedure to be adopted in terms of the regulations have been duly adopted and followed in the case in hand. The findings of the enquiring authority were perused by the Regional Director, who is the competent authority. That officer disagreed with the findings of the enquiring authority for reasons which he had recorded. Those reasons were communicated and the delinquent answered them. It was WPC.27156/06. 5 within the authority of the Commissioner to further consider the matter. The Commissioner elaborately considered the matter and came to conclusions which are not at variance from the allegations levelled against the delinquent. We find that the Commissioner had only elaborated on the disagreement noted by the Regional Director as regards the enquiring authority's report. 7.With the aforesaid, we find that the respondent does not appear. We enquired with the counsel whose name appears in the cause title. He states that the respondent had disengaged him and had taken back the records and had also given him appropriate letter in connection with the relinquishment of the vakalath. 8.In the aforesaid scenario, we thought it fit to consider the matter even from a slightly different angle. Even if we assume that the disagreement recorded by the Regional Director and the action of the Commissioner in having upheld those WPC.27156/06. 6 disagreements are unsustainable, the respondent had not been able to justify either before the Commissioner or before the Tribunal that the findings, on appreciation of evidence, as rendered by the enquiring authority are wrong. If that be so, we are of the firm view that the punishment meted out to the respondent is fair, reasonable, proper and justified on the facts and circumstances of the case. He has been found guilty in the disciplinary proceedings, of having deprived a woman labourer of her entitlement to maternity benefits in accordance with the provisions of the beneficial legislation, the ESI Act. She was deprived of lump sum payment and was forced to take the benefit in small sums. Also, it was proved that the respondent entered into monetary transaction with an insured person. The ESI Corporation is to provide facilities to a challenged sector, labour force. With this, we do not find that even if the charges found by the enquiry authority alone stands, the punishment is, in no manner, disproportionate. The writ petition, therefore, succeeds. WPC.27156/06. 7 In the result, the impugned decision of the Tribunal is vacated and the punishment imposed on the respondent would stand. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.S.GOPINATHAN, Judge. kkb.25/02.