Cement Corporation of India Ltd v. Saju S Dominic & Ors

(c) Pass any other order or direction in favour of the

16. The learned Single Judge allowed the writ petition and set aside the order of the Disciplinary Authority as well as the Appellate Authority and it is this judgment which is impugned before us by the appellant.

17. The contention of the learned senior counsel for the appellant is that the root cause of taking action against the respondent was a complaint received on 30.12.2014 by the Central Vigilance Commission against the respondent, alleging that he had shown undue favour to Sh. Gautam in reimbursement of the medical expenses of Rs.3.75 lakhs. It is further contended that the respondent had not acted in accordance with the CCI Medical Rules and by misrepresenting the facts had sought relaxation from the Competent Authority for the sanction of this amount. Mr. Dutta further contends that the Circular dated 09.01.2002 deals with the medical facilities and indoor treatment and in the said circular, it is clearly stipulated that in case of hospitalization in emergency, the CMO may be contacted and in his absence, the employee may seek permission from GM (P&A), Corporate Office. He has further referred and relied on a circular dated 02.04.2012, which provides that if the indoor treatment is in a non-empanelled hospital, with prior approval of the Competent Authority, the reimbursement will be strictly as per AIIMS rates and no relaxation shall be allowed. In most emergent cases, however, if the empanelled hospital is not available in the nearby vicinity, the employee may avail the same from the available sources, but in such an eventuality written permission would have to be taken from the Competent Authority within 24 hours, failing which reimbursement will not be allowed. He submits that Sh. Gautam had not taken the requisite approvals as per the circular and in the note, it is nowhere mentioned that even telephonic approval had been taken by Sh. Gautam within the time prescribed. Mr. Dutta submits that the appellant has no animus with the respondent and have only followed the advice of the CVC which has vide its memo dated 09.06.2015 advised initiation of minor penalty proceedings against the respondent.

18. Per contra, learned counsel for the respondent, who appears on a caveat, submits that the appeal is misconceived and is only filed with a view to further harass the respondent. The appellant has already succeeded in depriving the respondent of his promotion to the post of Director (HR) and this appeal is yet another act of victimization. Learned counsel submits that there is a complete violation of Principles of Natural Justice as the then Director (HR) was himself a party to the decision of granting reimbursement and despite this, he subsequently assumed the role of a Disciplinary Authority imposing the penalty and also being the Chairman of the Appellate Board. Learned counsel for the respondent further contends that the various file notings approving the case of reimbursement would show that this was a collective process and decision, as the file was routed through the Administration Department, Medical Consultant, Director (Finance), Director (HR) and the CMD. It is not as if the respondent has individually taken this decision, and therefore, it can hardly be alleged that there was any motive with the respondent to help Sh. Gautam. He further contends that the action was also in compliance with the Rule position and not in violation, inasmuch as, Clause 4.3.[9]

(ii) of CCI Medical Attendance Rules clearly states that in deserving and exceptional cases the CMD has the power to relax the provisions of the Rule. He submits that in fact the Director (HR) did not appreciate that it was not the responsibility of the respondent to carry out the exercise of finding out the rates at AIIMS and further that the telephonic approval granted by the earlier CMD was perhaps not within his knowledge. The Disciplinary Authority in fact did not even make any effort to verify the fact of telephonic approval. He submits that the respondent also had no role in preparing the accounts or handing over the advance to Sh. Gautam.

19. The next contention of learned counsel for the respondent is that the penalty imposed is disproportionate and also that only he has been singled out and inflicted with the penalty. The officers who recommended for relaxation, who bifurcated the amount, disbursed the amount as well as the then CMD who had relaxed the condition and sanctioned the amount have not even been proceeded against in any disciplinary proceedings. It is also contended that the present CMD could not have revisited the order passed by the earlier CMD, more particularly, when neither the then Director (HR) nor the Director (Finance) raised any objections against the disbursement and no recovery proceedings have been initiated against any employee.

20. We have examined the contentions of the respective parties after hearing them at length.

21. The learned Single Judge has primarily allowed the writ petition on the ground that the then CMD had exercised his powers of relaxation which were available to him under the CCI Medical Attendance Rules after the CMD had examined the emergency situation, the ground reality of there being no empanelled hospital in the vicinity and thus the respondent could not be blamed for the reimbursement.

22. Memorandum of Charge was issued against the respondent on 23.06.2015. The gist of allegations against the respondent were that the respondent while recommending the proposal for payment of advance of Rs.3.25 lakhs did not raise any objection for taking treatment from a non-empanelled hospital. He did not mention anything about the CCI Medical Attendance Rules and the facts that the treatment was being availed from a non-empanelled hospital. He intentionally did not seek any clarification as to whether the MAX hospital was charging the AIIMS rates. He has bypassed all procedures on the ground that the treatment was in emergency. He has overlooked the noting of the superior officers who had approved the amount subject to a condition that the release will be as per the CCI Medical Attendance Rules.

23. On a careful analysis we find that Clause 4.3.[9] (ii) enables the CMD to exercise his power of relaxation of any provision of the Rule, in deserving and exceptional cases. The relevant portion of the said Rule is extracted herein under:- “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”.

24. We also find that the then CMD in his counter-affidavit to the writ petition had deposed that at around 3:00 am on 17.05.2014 he had been informed by Sh. Gautam over the phone about the medical emergency and the CMD had instructed him to take the requisite treatment from any adjoining hospital immediately. He has also averred that the spouse of Sh. Gautam had thereafter requested him for an advance payment of Rs.3.25 lakhs to be released to the hospital. The request letter was accompanied by a letter by the Senior Consultant, Cardiologist, from MAX hospital. The CMD has categorically deposed that since the amount was huge and there was no empanelled hospital nearby, he had given a go ahead for the treatment, being the Competent Authority. Significantly, the CMD has also stated in the affidavit that though the respondent had not specifically mentioned about the Medical Rules in his note dated 18.05.2014, but he had intimated that the MAX Centre was not an empanelled hospital and so no credit facility had been made available. The CMD has further mentioned that whilst it is true that Sh. Gautam had got admitted only after his oral approval but the ultimate decision of relaxation was taken only after he had carefully considered the notings of the Administration and Finance Department as well as the Medical Consultant and not in a haste.

25. Having perused the contents of the affidavit filed by the erstwhile CMD, we have no doubts in our mind that the then CMD had taken a conscious decision to exercise his powers of relaxation and approved the medical reimbursement claim of Sh. Gautam. Clause 4.3.9(ii) of CCI Medical Attendance Rules clearly enables and empowers the CMD to exercise such a power of relaxation in a deserving case, being the Competent Authority. It is also not disputed on facts by the appellant that the admission of Sh. Gautam in the non-empanelled hospital was in an emergency situation and it is also not disputed that in the near vicinity of the residence of Sh. Gautam there was actually no empanelled hospital. The case of Sh. Gautam thus squarely fell in the “deserving case” and is covered in the concerned Rule. It is also to be noticed that the CMD has clearly deposed before the learned Single Judge in his affidavit that his decision was not merely based on the initial approval that he had telephonically given, but was after a careful perusal of the various notings put up by the different Departments concerned, including the Medical Consultant. In view of this stand taken by the then CMD, we see no reason why the respondent has been blamed and a penalty has been imposed on him.

26. We find that the learned Single Judge has taken note of the Annexure which was placed at page 476 of the petition and has found that the proposal was put up by the Deputy (O) Administration, duly endorsed by DM (Admin), S.M. (Admin), GM (HR) and Medical (Consultant), directly to the CMD who had approved the same. Since the proposal had the approval of the CMD, the claim was passed and the Finance Department had released the payment. The proposal was thus routed though proper channel and approved by the Competent Authority and the respondent thus cannot be singled out and blamed.

27. The learned Single Judge has also in his judgment noted a very significant fact and which is that the then Director (HR) had initially recommended the proposal, but later when he became the CMD, he not only initiated the disciplinary proceedings against the respondent but also participated as an Appellate Authority as a part of the Board of Directors. This, in our view, was completely illegal and as rightly observed by the learned Single Judge against all norms of service jurisprudence. We may only hasten to add that this exercise also shows the malice against the respondent to somehow make him a scapegoat.

28. We also find merit in the contention of the respondent that the proposal had passed through various channels and approved by the CMD, yet only he has been singled out and penalized. During the hearing we had pointedly asked the learned senior counsel if any other officer has been penalized and the answer was in the negative. We thus find that there is a clear violation of Article 14 of the Constitution of India by relying on the judgement of the Apex Court in the case of Man Singh vs. State of Haryana & Ors. reported at (2008) 12 SCC

331. It has been held by the Apex Court that any act of repository of power, whether legislative or administrative or quasi-judicial is open to challenge, if it is so arbitrary or unreasonable that no fair-minded authority could even have made it. The concept of equality as enshrined in Article 14 of the Constitution, embraces the entire realm of State action. It would extend to an individual as well, not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. The doctrine of equality is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a Government action. In the case of Man Singh (supra), the question involved was regarding the punishment meted out to the appellant therein while a similarly situated Head Constable was let off. The Apex Court while examining the matter on the touchstone of Article 14 of the Constitution of India held that the order of the Disciplinary Authority imposing punishment upon the appellant was unfair, arbitrary and against the doctrine of equality. The appellant deserved to be treated equally in the matter of Departmental action qua his commorade. We quote the relevant portion of the judgment in the said case hereinunder:

29. Learned senior counsel for the appellant is, no doubt, right in his submission that the Circulars of medical reimbursements have to be followed. However, even assuming that Sh. Gautam was only entitled to AIIMS rates, what we cannot fathom, is how the respondent can be blamed in the entire scenario, more particularly, in view of the fact that this was an emergency situation and there was a prior approval of the CMD as well as a post approval for reimbursement based on relaxation under Clause 4.3.9(ii) of CCI Medical Attendance Rules. Though we are not entering into the issue as to whether Shri Gautam was entitled to the AIIMS rates or the reimbursements on the actual expenses, we may, however, take note that several judgments of the Apex Court and this Court have now settled the law that right to health is a fundamental right and also that when an employee gets a treatment in an emergency situation in a non-empanelled hospital, he would be entitled to reimbursement of the actual expenses incurred and the Government cannot insist on CGHS/AIIMS rates. In this context, we rely on the judgment of the Apex Court in the case of Shivakant Jha vs. Union of India (2018) 16 SCC 187.

30. The contention that the action was pursuant to a CVC advice also has no merit. The CVC had apparently received a complaint and had forwarded the same to the appellant for further action. This certainly cannot imply that without any basis or fault, the respondent would be penalized, only because of CVC advice.

31. In view of the above, we find no infirmity in the impugned judgment and the present appeal is accordingly dismissed being devoid of merits.

32. The respondent had a chance of consideration for promotion to the post of Director (HR) in June 2015, when interview was held by PESB. However, owing to the charge memo issued a few days prior to the interview, he could not succeed in the selection process. While we cannot undo the prejudice that has been caused to the respondent, we dismiss the present appeal with a cost of Rs.25,000/- to be paid by the appellant to the respondent.

JYOTI SINGH, J G.S.SISTANI, J. AUGUST 06, 2018 Rb/AK