Saju S Dominic vs UOI And Ors

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.

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

Rs. 3.25 lakhs and request was considered and approved by the C&MD on recommendations of Director-HR (Respondent No. 3), the Directorâ€

Finance, GM-HR (the Petitioner herein). On 19.05.2014, the respondent No. 3, who was thet hen 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 companyâ€. 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 pleaseâ€​. The Admin. Department forwarded the bills to the Finance Department and the Finance Department bifurcated a sum of Rs. 0.41

lakhs as admissible as per CCI medical rules and recommended for seeking special approval of Rs. 3.75 lakhs and returned the bills back to Admin.

Department on 04.07.2014.

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 Rs. 3.75 lakhs on humanitarian grounds. The DM

Administration initiated and routed through Senior Manager (Marketing & Administration) GMâ€"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.

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 Directorâ€"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 Directorâ€"Finance also.

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.

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.

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.

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.

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.

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 necessaryâ€​.

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 Rs. 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.

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.

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 Rs. 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).

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.

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.

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.

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.â€​

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.

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.

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.

The petition is allowed and disposed of, accordingly.

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

In view of the order passed in the present writ petition, these applications have been rendered infructuous and are accordingly, disposed of.