Vijay Kumar Vs Union of India

VIJAY KUMAR S/O LATE RAMJI LAL AGED ABOUT 50 YEARS DEPUTY DIRECTOR ZONAL TRAINING INSTITUTE, SOUTH ZONE ESIC HOSPITAL, SEDAM ROAD KALABURAGI – 585 103.

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…PETITIONER

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(BY SRI. SACHIN M. MAHAJAN, ADVOCATE)

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Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA

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AND:

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UNION OF INDIA MINISTRY OF LABOUR AND EMPLOYMENT SHRAM SHAKTI BHAVAN, ROAD NO.2 RAFI MARG, NEW DELHI – 110 001. THROUGH THE SECRETARY.

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THE DIRECTOR GENERAL AND DISCIPLINARY AUTHORITY, EMPLOYEE STATE INSURANCE CORPORATION (ESIC) PANCHDEEP BHAVAN, CIG ROAD, NEW DELHI – 110 002.

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…RESPONDENTS

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(BY SRI. SUDHIR SINGH R. VIJAPUR - DSGI)

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HC-KAR

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS TO IMPLEMENT THE ORDER PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL DATED 24.08.2023 IN OA.NO.170/00221/2021 (ANNEXURE-B) AND GRANT ALL THE PROMOTIONS, INCREMENTS AND OTHER BENEFITS TO THE PETITIONER AS IF NO DISCIPLINARY ACTION IS PENDING AGAINST THE PETITIONER FORTHWITH OR WITHIN A TIMEBOUND PERIOD; DIRECT THE RESPONDENTS TO PAY ALL BENEFITS, INCLUDING INCREMENTS, BONUSES, AND PROMOTIONS, WHICH THE PETITIONER IS ENTITLED TO, FORM THE DATE WHEN THESE BENEFITS WERE DUE, INCLUDING ALL ARREARS, WITH INTEREST FORTHWITH IN VIEW OF THE UNLAWFUL DELAY AND DISCRIMINATORY ACTIONS IN THE DISCIPLINARY PROCEEDINGS AND ETC.

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THIS WRIT PETITION IS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 13.06.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING.

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ AND

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HON'BLE MRS. JUSTICE K S HEMALEKHA

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HC-KAR

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CAV ORDER

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(PER: HON'BLE MRS. JUSTICE K S HEMALEKHA)

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The petitioner is before this Court aggrieved by the willful and deliberate inaction on the part of the respondents in not reconsidering the disciplinary proceedings in compliance with the directions issued by the Central Administrative Tribunal (for short, ‘Tribunal’) in its order dated 24.08.2023 in O.A.No.170/00221/2021.

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Heard the learned counsel for the petitioner and the learned counsel for the respondents.

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Learned counsel for the petitioner submits that despite the clear time bound directions of the Tribunal to adjudicate the matter afresh in light of the observations made therein, the respondents have failed to take any action, thereby violating the Tribunal’s order and denying the petitioner his lawful entitlements, including consequential service benefits. It is also submitted that the petitioner had initiated contempt proceedings before the Tribunal in CAT C.P.No.33/2024 in O.A.No.221/2021, owing to the non-implementation of the

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Tribunal’s order dated 24.08.2023. It is submitted that despite multiple opportunities granted by the Tribunal, the respondents have failed to implement the directions of the Tribunal, in support of his contention he has placed on record the order sheet in contempt petition reflecting several adjournments, which were sought by the respondents, thereby causing undue delay and prejudicially affecting the petitioner’s right. It is submitted by the learned counsel appearing for the petitioner that due to the willful inaction of the respondents, the petitioner has been illegally deprived of his rightful promotion, and in the meantime, employees junior to the petitioner have been promoted.

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Per contra, learned counsel appearing for the respondents submits that there is no deliberate or willful disobedience of the Tribunal’s order and it is contended that certain procedural formalities and inter departmental communications are the reasons for the delay to pass the final order in compliance with the Tribunal’s judgment. It is further submitted that, in the contempt petition filed before the Tribunal, the respondents have put forward the reason for non-

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compliance which is not deliberate and the same having been considered by the Tribunal, time is granted to report compliance. It is the specific contention that there was administrative delay attributable to unforeseen circumstances.

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We have carefully considered the rival contentions of the parties and perused the entire material placed on record.

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The brief facts of the case:

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The petitioner was appointed as Deputy Director (Administration) in the Employees’ State Insurance Corporation (for short, ‘ESIC’) and was posted at ESIC Medical College and Hospital, Kalaburagi. On certain allegations made against the petitioner, charge sheet was issued and departmental enquiry was conducted. Upon conclusion of the enquiry, the disciplinary authority imposed a penalty of reduction to a lower stage in the time-scale of pay for a period of five years, with the stipulation that upon the expiry of the said period, the reduction would have the effect of postponing future increments of the petitioner. Aggrieved by the said penalty, the petitioner preferred appeal before the respondent No.1, and

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also filed an application under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:

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“a) ISSUE writ of certiorari or any other appropriate writ or order or direction, quashing the impugned order bearing Ref.No.C-14/13/31/2018-Vig dated 18.02.2020 (Annexure A9) passed by the 2nd Respondent, true copy of which is being produced and marked as Annexure A10, as the said order is illegal, arbitrary, unjust, without application of mind and thus violative of Articles 14 and 16 of the Constitution apart from being contrary to Regulation 26 of the ESIC Regulations, 1959;

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aa) Issue a writ of certiorari or any other appropriate writ or order to quash the Order bearing Ref. No.C16/15/09/2020-Vig dated 30.03.2021 passed by the first respondent which has been produced as AnnexureA10 as the same is illegal, unjust, arbitrary, capricious apart from being in contravention of Articles 14, 16 and 21 of the Constitution of India.

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b) ISSUE writ of mandamus or any other appropriate writ or order or direction, directing the respondents, in particular the 2nd Respondent to grant the applicant all the consequential benefits, as if there is no order of penalty and grant the applicant all the consequential benefits like pay fixation, seniority, promotion and other benefits which he is legally entitled to;

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c) PASS such other order/s, as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, in the interest of justice and equity.”

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During the pendency of the application,

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O.A.No.170/00221/2021, the appeal before the appellate authority was rejected and hence the petitioner sought to amend the application challenging the order of the appellate authority. The petitioner in O.A.No.170/00221/2021 sought to quash the penalty orders and prayed for mandamus directing the respondents particularly the respondent No.2, Director General, ESIC to grant all the consequential benefits, as if no penalty has been imposed including restoration of pay, seniority, promotion and other service benefits. One of the members of Technical Evaluation Committee who was also issued with the similar charge as issued to the petitioner had filed application No.170/00568/2020 before the Tribunal. The Tribunal on consideration of the material on record set aside the order of the disciplinary authority and the order passed by the Appellate Authority and remitted the matter to the

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disciplinary authority to reconsider the same not later than eight weeks from the date of receipt of the certified copy of the

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order. As the petitioner was placed in similar position and the question involved was similar, the O.A.No.170/00221/2021 filed by the petitioner came to be disposed of in similar terms as ordered in O.A. No.170/00568/2020 and the operative portion of the order of the Tribunal reads as under:

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“1) The order passed by the Disciplinary Authority dated 09.03.2020 at Annexure-A8 and the order passed by the Appellate Authority dated 30.03.2021 at Annexure-A10 are set aside.

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1. The matter is restored to the file of the Disciplinary Authority, Respondent No.2, for reconsideration.

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The Disciplinary Authority shall reconsider the matter and pass an appropriate order in accordance with law in an expedite manner, in any event, not later than eight weeks from the date of receipt of certified copy of this order.

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1. All the rights and contentions of the parties are left open.

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1. With the aforesaid observations and directions, OA stands disposed of. No order as to costs.’’

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The Tribunal has already exercised its jurisdiction

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and directed re-consideration of the disciplinary action. The petitioner has also invoked contempt jurisdiction, which is

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pending before the Tribunal. In the said circumstances, the writ petition cannot be entertained as the petitioner has already availed the remedy in the form of contempt proceedings. However, the disciplinary authority is directed to comply with the Tribunal’s order dated 24.08.2023 forthwith and pass appropriate orders. If the disciplinary authority does not comply the Tribunal’s order, the Tribunal is requested to expedite the hearing in Contempt Petition No.33/2024 and take necessary action in accordance with law.

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With the above observation, the writ petition stands disposed of making it clear that the non-compliance of the order of Tribunal by the respondents would result in severe consequences.

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Sd/(MOHAMMAD NAWAZ) JUDGE

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Sd/(K S HEMALEKHA) JUDGE

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BL List No.: 1 Sl No.: 1 CT:NI

Vijay Kumar v. Union of India

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Vijay Kumar v. Union of India

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