Central Administrative Tribunal - Jaipur
Manish Sharma vs Employees State Insurance Corporation ... on 31 July, 2024
1
OA No.142/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 142/2024
Order reserved on : 14.05.2024
Date of order: 31.07.2024
CORAM:
HON'BLE MS. RANJANA SHAHI, MEMBER (J)
HON'BLE SHRI LOK RANJAN, MEMBER (A)
Manish Sharma S/o. Late Shri Mangal Dutt Sharma, aged
about 48 years, Resident of Flat No. 402, Krishna Kripa
Apartment No.3, Subhash Nagar, Jaipur (Raj.)-302016
presently working as Deputy Director (Senior Time Scale),
Employees State Insurance Corporation, Regional Office,
Bhawani Singh Road, Jaipur (Raj.) Group - A
Mobile No.8955589666 subject:order of penalty
Email: [email protected]
...Applicant
(By Adv: Shri Shailesh Prakash Sharma)
Versus
1. Union of India through Secretary Ministry of Labour and
Employment, Shram Shakti Bhawan, Rafi Marg, New
Delhi-110001
2. Chairman Employees State Insurance Corporation,
Shram Shakti Bhawan, Rafi Marg, New Delhi-110001
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OA No.142/2024
3. Director General, Employees State Insurance
Corporation, Panchdeep Bhawan, CIG Marg, New Delhi-
110002
4. Insurance Commissioner (P&A), Employees State
Insurance Corporation, Panchdeep Bhawan, CIG Marg,
New Delhi-110002
5. Regional Director, ESIC, Regional Office, Bhawani Singh
Road, Jaipur -302005
(By Adv: Shri Namo Narayan Sharma)
ORDER
Per : Hon'ble Shri Lok Ranjan, Member (A)
The Applicant in the present Original Application is aggrieved by the impugned Order dated 17.01.2024 vide which the decision of the Respondent No.02 had been conveyed by the Respondent No.04, thereby observing that the Applicant did not perform his duty in a manner which was expected from an officer holding such a responsible position; and hence imposing upon him a penalty of reduction to a lower stage in the time scale of pay by two stages for three years, with further directions that he will not earn increments of pay during the period of such reduction and that on the expiry of such period, the reduction will not have the effect of postponing the future increments of his pay.
3OA No.142/2024
2. The Applicant, who was appointed as Deputy Director in the Employees State Insurance Corporation (ESIC) in September-2010, was eventually posted at ESIC Hospital Jhilmil, for the period from 07.12.2016 to 30.12.2018, during which he held various charges including the charge of DD (Finance) from 07.12.2016 to 18.05.2018. A Vigilance Investigation team of the ESIC Headquarters, Delhi had carried out an investigation regarding the irregularity and delay in tender processing for Annual Repair and Maintenance (ARM) works of ESIC Hospital, Jhilmil for the period from June-2016 onwards ; and vide their Report dated 11.01.2019 had made certain observations. Those observations had pertained inter alia to - the grant of repeated extensions after 31.05.2016 to the private agency engaged previously without finalizing of fresh tender, which was in gross violation of GFR and CVC guidelines ; the late initiation of process for inviting fresh tender only in April-2016, whereas the earlier contract was due to expire on 31.05.2016 ; the delay in finalizing the fresh tender by the committee constituted for that purpose, which was due to casual manner and various pretexts adopted by the committee ; the failure of the committee to notice unjustified variations in the estimated Bill of Quantity (BOQ) for ARM work and in the arbitrary stipulation of the pre-qualification in terms of the annual financial turnover of the bidders in violation of CVC guidelines, which led to a defective tender document being floated initially on 4 OA No.142/2024 02.02.2018 ; the delayed uploading online of the same on the e-procurement website only on 13.02.2018 in violation of GFR provisions, which combined with arbitrary increase in tender value and annual turnover qualification had resulted in restricted participation and thus required a second/fresh call of tender causing even more delay ; the non-inclusion of a Technical Member in the Technical Evaluation Committee (TEC) at the second/fresh call of tender (published on 13.03.2018 and uploaded online on 16.03.2018), which was in violation of extant Orders of the ESIC Headquarters ; the improper examination and failure to notice the deficiencies regarding amalgamation and experience certificate of one of the bidders at the second/fresh call of tender ; etc.
3. In consequence of the Report of the ESIC Headquarters Vigilance Investigation Team, the Applicant was issued a notice dated 01.03.2019, whereby the various lapses were specified relating to the tender process and award of contract to private agency for ARM works at ESIC Hospital. Jhilmil, Delhi ; and the Applicant was called upon to show cause and clarify as to why disciplinary action should not be initiated against him, as being responsible for those lapses in his capacity as the DD (Finance) ESIC Hospital, Jhilmil as well as the Member of the TEC for tender evaluation. The Applicant had replied to the said notice vide his letter dated 10.05.2019. However, the same had not been found 5 OA No.142/2024 satisfactory by the competent authority and disciplinary proceedings had been initiated against the Applicant vide Memorandum dated 12.12.2019 whereby two Articles of charges had been framed against the Applicant. The Charge-I therein had pertained to misconduct as the DD (Finance), which was reflected through his failure to take due care and caution as well as to maintain financial propriety, while according financial concurrence to a defective draft tender document for ARM work of the said hospital for the years 2016-17 and 2017-18. It was imputed that he had done so without properly examining and thereby noticing the discrepancies in the stipulation of estimated cost and stipulation of the desired annual turnover in respect of prospective bidders in the tender document ; and in the processing of the detailed estimate (BOQ) also, which was not subjected to any financial scrutiny and concurrence before its incorporation in the tender. The Charge-II therein had pertained to misconduct as the member of the Technical Evaluation Committee for scrutiny of tender for ARM work that was reflected through the failure to notice that no documentary evidence had been furnished by the L-1 bidder in respect of its eligibility in terms of its experience, for which it had relied on the experience certificate of another company with which the L-1 bidder had claimed amalgamation ; and further the failure to notice that the latter company was already a blacklisted agency.
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4. In response to the chargesheet vide Memorandum dated 12.12.2019, the Applicant/Charged Officer(CO) had submitted his written statement of defense dated 17.08.2020. Vide the same, the Applicant/CO had at the outset denied both the charges and the various imputations made thereunder; and had further furnished his reasons for the same in detail. The Inquiry was proceeded duly thereafter by the appointed Inquiry Officer (IO) and was concluded vide the Report dated 29.05.2023, after going through and analyzing the recorded statements of witnesses, the listed documents, the written statements, self-examination as well as the general examination of charged officials and the written brief of the Presenting Officer. Thereby, in respect of the charges against the Applicant/CO, the IO had found that the Article of Charge- I stood 'Partly Proved' against him and that the Article of Charge-II was 'Not Proved'. The said report had been duly accepted by the Disciplinary Authority (DA) pursuant to which a copy of the said Inquiry Report was forwarded vide the letter dated 08.09.2023 of the Regional Office (Vigilance), Jaipur to the Applicant/CO, who had thereupon submitted his written representation dated 14.11.2023. Thereupon, the impugned Order dated 17.01.2024 had been issued by the Respondent No.4 conveying the decision of the Chairman, ESIC (Respondent No.2, the designated DA) regarding imposition of a penalty of reduction to a lower stage in the 7 OA No.142/2024 time scale of pay by two stages for three years upon the Applicant/CO with further directions that he will not earn increments of pay during the period of such reduction and on expiry of such period, reduction will not have the effect of postponing the future increments of his pay. On being aggrieved by the same, the Applicant has filed the present O.A. before this Tribunal.
5. An issue that came up at the outset was whether the Applicant was having a statutory alternative remedy of appeal under Regulation-17 read with Regulation-18 of the ESIC (Staff and Conditions of Service) Regulations, 2023 [ESIC(SCS) Regulations-2023, hereafter]. The Respondents have averred in their Reply that even though the alternative remedy of appeal was available, the Applicant had sought to pursue the present O.A. at the Tribunal without first availing of the said alternative remedy. The Applicant had on the other hand stated with reference to the Regulation-18 read with the Second Schedule of the extant ESIC(SCS) Regulations-2023, that for Deputy Director level officers the Chairman ESIC was the designated DA and the Central Government was the designated Appellate Authority. Accordingly, in respect of the DA for the Applicant as prescribed to be the Chairman, ESIC, a copy of Directory downloaded from the website of ESIC i.e. esic.nic.in was furnished to show that the Union Minister for Ministry of Labour and Employment was the Chairman of 8 OA No.142/2024 ESIC. Further, in respect of the Appellate Authority, which is prescribed thus to be the Central Government, it was submitted that since ESIC is an organization under the Ministry of Labour & Employment of the Government of India any appeal made by the Applicant would also be required to be considered by the Union Minister for Ministry of Labour & Employment. Hence, the Applicant had contended that the Disciplinary as well as Appellate Authority was the incumbent Union Minister for Labour and Employment, Government of India. The Applicant had hence stated that it has been categorically held by the Hon`ble Supreme Court of India in the matter of Amar Nath Choudhary Vs. Braithwaite Company and Ltd. [(2002) 2 SCC 290] "where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he has already pre-judged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility." In light of the presentations before us in this regard as foregoing, we deem the filing of the present O.A. before this Tribunal to be maintainable.
6. At this stage, we find it apposite to examine the scope of jurisdiction of the Tribunal in the matter of disciplinary action in respect of Central Civilian Employees as per the law settled by the Order of the Hon'ble Apex Court in a catena of cases. The Hon'ble Apex Court in the case of Shri Parma Nanda Vs. 9 OA No.142/2024 State of Haryana and Ors. [1989 (2) SCC 177] had inter alia observed that :
"... The jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. The power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Art.309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
Further, the Hon'ble Apex Court in the case of State Bank of India Vs. Samarendra Kishore Endow [1994 (1) SLR 516], had reiterated that a High Court or Tribunal has no power to substitute its own discretion for that of the authority ; and observed that -
... It may be noticed that the imposition of appropriate punishment is within the discretion and judgement of the disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason 10 OA No.142/2024 that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under 'Article 226 is one of judicial review'. It "is not an appeal from a decision, but a review of the manner in which the decision was made". In other words, the power of judicial review is meant "to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court."
7. Further, the Hon'ble Apex Court in Civil Appeal No.2707 of 2022 in the case of Anil Kumar Upadhyay Vs. Director General, SSB and Ors. had summarized the law laid down in respect of the judicial review and interference of the courts in the matter of disciplinary proceedings.
"8. ...
ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this Court observed and held as under:
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being factfinding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in 11 OA No.142/2024 exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under :
"19. The principles discussed above can be summed up and summarised as follows :
19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.
19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.
19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-
delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with 12 OA No.142/2024 unqualified apology, lesser punishment to him would be justifiable."
......
8. We also advert to the observations of the Hon'ble Supreme Court in Civil Appeal No.s 7939-7940 OF 2022 arising out of SLP (Civil) No. 3524-25 of 2022 and Civil Appeal No.s 7941-42 of 2022 arising out of SLP (Civil) No. 11021-22 of 2022 - both in the case of Union of India & Ors., Vs. Subrata Nath that had comprehensively gone into the issues related to the judicial review and interference of the courts in the matter of disciplinary proceedings as follows :
"15. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere.
16. In the above context, following are the observations made by a three-Judge Bench of this Court in B.C. Chaturvedi (supra) :
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the 13 OA No.142/2024 authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal.
......
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline.14 OA No.142/2024
They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
[Emphasis laid] ......
19. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran [(2015) 2 SCC 610] held that :
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether :
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;15 OA No.142/2024
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not :
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
......
22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the 16 OA No.142/2024 misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P.Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re- consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor."
9. In the instant case, the Respondents had also sought to rely on the Judgment of the Hon'ble Supreme Court in P. Gunasekaran (supra) to aver that the impugned Order dated 17.01.2024 passed by the DA does not call for any interference by the Tribunal. Upon a careful perusal of the pleadings and the documents taken on record, it emerged that the punishment was imposed in respect of the charge pertaining to discrepancies occurring and unjustified multiple changes in the stipulation of estimated cost and of the desired annual turnover in respect of prospective bidders in the tender document for ARM in 2016-17 and 2017-18 at ESIC Hospital, Jhilmil, Delhi ; and also in the processing of the related detailed estimate (BOQ), which was not subjected to any financial scrutiny and concurrence before its incorporation in the tender. Moreover, it is also noted that the aforesaid 17 OA No.142/2024 impugned Order dated 17.01.2024 was issued after the prescribed procedure having been followed, viz., - the issuing of show cause notice to the Applicant ; initiation of the disciplinary proceedings by issue of chargesheet after considering his reply ; conducting of the Inquiry by the IO at length as per the various prescribed steps of the Inquiry procedure ; the consideration of the relevant issues brought before the IO after evaluation of the evidence before him ; the seeking of representation of the Applicant/CO by sharing the Inquiry Report ; and considering the same before issue of the punishment Order dated 17.01.2024. Thus, in light of the law regarding the scope of the Tribunal in respect of the disciplinary proceedings against Central government employees as clearly enunciated by the Hon'ble Apex Court and as cited at the paragraphs (6 to 8) herein foregoing ; and keeping in view the records of and averments related to the disciplinary proceedings we deem that it would not be open for this Tribunal to reappreciate the evidence or to correct any error of fact.
10. Therefore, while the various contentions of the Applicant through the O.A. were carefully perused, it was with conscious sensitization that the law as established vide the Judgment and Order of the Hon'ble Supreme Court in Union of India and Others vs. P. Gunasekaran (supra) would bar
- either the reappreciation of evidence ; or, interference with 18 OA No.142/2024 the conclusions in the enquiry despite the same having been conducted in accordance with law and being based on some legal evidence ; or, going into the adequacy or reliability of the evidence ; or, correction of errors of fact ; or, going into proportionality of punishment unless it shocks the conscience
- on part of this Tribunal. The same had also been underlined by the Respondents through their pleadings on record as well as in the arguments. Hence, such contentions were not considered for further examination. On the other hand, the learned counsel for the Applicants had argued that several contentions of the pleadings had pertained to aspects that were permissible to be examined by this Tribunal as per law laid down vide the Judgment and Order of the Hon'ble Supreme Court in P. Gunasekaran (supra), as these pertained to - either violation of the procedure prescribed for the Inquiry ; or violation of the principles of natural justice in conducting the proceedings ; or, the conclusions reached by the authorities were unfair and not based on the evidence and merits of the case, while failing to admit admissible and material evidence. He had sought to proceed to argue such aspects - and had sought to proceed to argue in respect of such aspects. The summary of presentations, examination and analysis in respect of each of such aspects follows in the paragraphs hereafter.
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11. It was pointed out at this stage on part of the Applicant that it was not required to re-examine any aspects in respect of the Charge No.2 brought against the Applicant in the chargesheet dated 12.12.2019, since the IO vide the Inquiry Report dated 29.05.2023 had held the Charge No.2 as 'Not Proved' against the Applicant ; which had been accepted duly by the DA and also agreed to by the Applicant/CO while submitting his representation dated 17.11.2023 on the Inquiry Report ; and consequently, the same was not relied upon in the impugned Order dated 17.01.2024 conveying the decision of the Chairman ESIC / DA. The learned counsel for the Applicant had presented his case only in respect of the Charge No.1 that had been held as 'Partly Proved' against the Applicant/CO by the IO vide the Inquiry Report dated 29.05.2023 and accepted as such by the DA ; which although denied by the Applicant/CO through his afore-mentioned representation dated 17.11.2023 had eventually been relied upon while issuing the impugned Order dated 17.01.2024 conveying the decision of the Chairman ESIC / DA.
12. In this regard, through the pleadings and arguments by the learned counsel for the Applicant, it was contended that it would be relevant to note that the Charge No.1 against the Applicant/CO vide Memorandum dated 12.12.2019 had included multiple imputations, inter alia - firstly, that pertaining to according of financial concurrence to a defective 20 OA No.142/2024 draft tender document for ARM work of the ESIC Hospital at Jhilmil, Delhi for the years 2016-17 and 2017-18 ; secondly, that pertaining to discrepancy and frequent changes in the stipulation of estimated cost and stipulation of the desired annual turnover in respect of prospective bidders in the tender document ; and thirdly, that pertaining to not subjecting the detailed estimate (BOQ) to any financial scrutiny and concurrence before incorporating the same in the tender. In respect of this, the first contention of the Applicant was that the finding of the IO holding that the Charge No.1 against him as 'Partly Proved' had not been concluded specifically in respect of any of the aforesaid imputations. While specific derivation was required - as to which imputation of the Charge No.1 was established and to what extent, with clear indication of the related basis on which it had been found 'Partly Proved' - there was no such delineation. Thus, the impugned Order dated 17.01.2024 was issued without any specific finding and was done in reiteration of the charges only.
13. In this context, a reading of the finding of the IO in the Inquiry Report dated 29.05.2023 would show that it had stated as follows inter alia :
"The Charged Officer has in his defense stated that the Finance and Account Branch had vetted the draft tender documents for ARM on 05.01.2028 and the estimated value of the tender mentioned in NIT was Rs. 2,11,23,876.35.21 OA No.142/2024
In his defense, he has quoted RTI reply from CPWD Authority wherein in the reply it is mentioned that NIT approving authority is competent as per Maintenance Manual which is a vague reply to his query whether financial concurrence is required before incorporating the same into the tender document, after the sanctioning authority has approved the detailed estimate / BOQ for ARM works tender. This has been construed to mean that the procedure regarding technical sanction/financial sanction/financial concurrence can be done away with, merely because the sanctioning authority has the full powers. It needs mention here that the Charged Officer was holding the charge of DD(F) from 07.12.2016 to 18.05.2018 and his involvement from the time of initiation of the tender process to its finalization on 17.05.2018 is clearly indicated on the file. Hence he cannot absolve himself of the responsibility of proper examination of draft tender documents and vetting/giving concurrence till finalization of the tender.
On going through the tender processing file, it is noticed that Shri K.P. Pandey also held the charge of DD(F) between 19.10.2016 and 17.05.2018 and hence, the Charged Officer cannot be held wholly responsible for the defective draft tender documents.
Article of Charge I as given in Annexure I & II to the Memorandum of Charges No. C-14/13/11/2019-Vig.(Hindi) dated 12.12.2019 stands PARTLY PROVED."
A plain reading of the same would show that while the finding that the said charge is partly proved against the Applicant/CO had been inferred on the basis of his holding the post of DD(F) for a part of the relevant period ; however, it did not specify which imputation in the Charge No.1 was proved against the Applicant/CO and the basis for the same, other 22 OA No.142/2024 than that the Applicant was holding the charge of DD(F) at ESIC Jhilmil, Delhi during the relevant period.
14. A second contention has moreover been made through the pleadings and arguments by the learned counsel for the Applicant. It was submitted thereby that it had to be appreciated that the decision for a tender for ARM in an ESIC Hospital was primarily within the purview of the Estate / Administration Wing. In going for the same, the estimated cost / BOQ was first to be assessed by the concerned Civil and Electrical Engineers and eventually the requirement for ARM Works and the estimates for the same are required to be approved by the competent authority, the Medical Superintendent. In the instant case, the proposal for ARM Works was initiated in the Administration Wing for two years 2016-17 and 2017-18 and the estimated cost / BOQ was Rs.8052266.84 for civil works and Rs.13071609.51 for electric work, thus totaling to Rs.21123876.35 per year. The annual turn-over required from every prospective bidder was specified to be Rs.10 Crore. The aforesaid detailed estimate / BOQ along with the draft tender document including terms and conditions were placed before a Draft Tender Evaluation Committee (TEC) of which the Applicant/CO was also a Member. Upon its recommendation duly, these were administratively approved by the Medical Superintendent on 13.12.2017 and forwarded for Financial Vetting to the 23 OA No.142/2024 Applicant/CO who had financially vetted the Draft Tender Document and BOQ on 05.01.2018 and the same was due to be approved by the competent authority i.e. Medical Superintendent before publication. However, prior to first publication of the tender document, DD Administration had incorporated certain changes in the Tender Form - in the amount of annual ARM quantity and the condition of annual turn-over required from every prospective bidder - which were never brought to the knowledge of the Applicant/CO at any point of time. Since eventually there was inadequate response through receipt of only two bids upon opening on 23.02.2018, that tender process was cancelled without getting into any other details then. Further, on the second occasion of the publication of tender on 13.03.2018 with more changes in related BOQ and required annual turn-over conditions, the related draft tender documents were never sent to the Applicant/CO for vetting or concurrence.
15. Thus, the Applicant has contended that on both occasions of call - at first on 02.02.2018 and then on 13.03.2018 - the tender was finalized at the level of Estate / Administration Branch with the approval of Medical Superintendent. It was only on the first occasion that the file of the tender process and the draft tender documents was placed before him ; and these documents were examined and looked into by the Applicant/CO and were duly vetted and 24 OA No.142/2024 financially concurred on 05.01.2018. But changes in the terms and conditions were made subsequently by other authorities inter alia in the stipulation of estimated cost (from Rs 2.11 Cr to Rs 3.5 Cr) and annual turnover (from Rs 10 Cr to Rs 5 Cr to Rs 3 Cr) ; and the amended tender was sent for publication on 02.02.2018 without an occasion for the Applicant/CO to see the document again. While this first call of tender had not materialized, the financial concurrence on the draft tender document while going for the second call was never obtained prior to its publishing on 13.03.2018 from the Applicant/CO who was holding the charge of DD(F) then ; but was obtained ex-post facto on 23.05.2018, by which time the Applicant/CO was not holding the charge of DD(F). It was thus contended by the Applicant that as the draft tender document along with BOQ was sent to him only on the first occasion and that too prior to the changes being made by other authorities ; and was never sent to him on the second occasion, no liability can be fastened upon the Applicant/CO for financial concurrence to a defective draft tender document for ARM work of the ESIC Hospital for the year 2016-2017 and 2017-18 ; as that would be contrary to the material evidence on record and merits of the case. Moreover, the Applicant/CO had contended that he was denied the most important evidence in the entire case - i.e., the draft tender document and the BOQ related to the first call of tender, which had been put up on file to him and upon which he had accorded concurrence after due 25 OA No.142/2024 vetting. It was stated that when those basic documents, viz. the draft tender document 2016-18, copy of BOQ etc., were prayed to be supplied to the Applicant/CO to enable his defense at the stage of Inquiry, it was conveyed by the concerned authority to be not traceable. The entire Inquiry had thus proceeded on the pretext of a document which was not part of the record and never could be looked into in the entire Inquiry process. It was thus submitted by the Applicant/CO that as per the provisions of the service jurisprudence, any charge framed on the basis of certain documents that were not made available to the Charged Officer was sufficient to demolish the entire charge and in these circumstances the Charge No.1 could not have been held as proved even partly and had to be dropped.
16. In this regard, the learned counsel for the Applicant had drawn reference to the examination by the DA which had in essence acknowledged that the related facts - those regarding the Applicant/CO having vetted / accorded concurrence to the proposal on file on 05.01.2018 ; and further those regarding the tenders published on 02.02.2018 and 13.03.2018 not being concurred by him - were matters as per records available in the relevant file. The DA had further proceeded to observe in this regard that : "However, since the charged officer was aware about the wrong stipulation of estimated cost and Annual turnover in the tender which was floated on 26 OA No.142/2024 02.02.2018, he being Head of the Finance Division should have acted responsibly and submitted the facts to the higher authorities mentioning that the amount of estimated cost stipulated in the NIT published was not as per the concurrence accorded by the charged officer on 05.01.2018." This as per the Applicant/CO was not determination of any wrong-doing on his part but in the nature of observation about wrong-doing on part of other officials / authorities.
17. On the other hand, the learned counsel for the Applicant had also referred to the list dated 18.02.2021 of 20 additional documents / sets of documents, requisitioned by the Applicant/CO for preparing his defense in connection with the related Inquiry. The IO had vide letter dated 07.07.2021 conveyed inter alia - that the P.O. had been directed to get the desired documents at Sl. No. 2 to 4 & 12 from ESIC Hospital, Jhilmil ; that the P.O. had also been directed to get the desired documents at Sl. No. 16 from PMD Branch, Headquarters ; and that the remaining documents were not being allowed as those were not considered relevant to the Inquiry and hence could not be provided. In continuation, it was also underlined by the learned counsel for the Applicant that the Document at Sl. No.2 was the 'Tender Processing File Noting for ARM Tender 2013-15 and Tender Document' - the relevance of which was stated 'to ensure the content with the Draft Render for 2016-18' ; that the Document at Sl. No.3 27 OA No.142/2024 was the 'Draft Tender Document 2016-18' - the relevance of which was stated 'to substantiate defense against Charge 1' ; that the Document at Sl. No.4 was the 'Copy of BOQ' the relevance of which was stated 'to substantiate defense against Charge 1' ; and, that the Document at Sl. No.12 was the 'Tender Processing File Noting of Housekeeping and Paramedical Manpower Services at IGESIH Jhilmil and Agreement of M/s Vayudoot Security as well M/s Max Maintenance' - the relevance of which was stated 'to substantiate defense against Charge 1 and 2'. Finally the learned counsel had also brought to notice the relevant content of the Order Sheet - 16/2021 dated 31.08.2021 whereby it was recorded that "... Further for the additional documents required by the Charged Officers Shri Manish Sharma, D.D. and Anil Dutt Sharma, Asstt. ... .. The Vigilance Branch vide letter No. C-14/15/38/2019-Vig. Dt. 26-8-2021 has informed that the documents demanded by Shri Manish Sharma, D.D. (Sl. No. 1 to 4), are in the custody of ESIC Hospital, Jhilmil. Hence these documents may be collected from the concerned custodian. MS ESICH, Jhilmil had earlier intimated that the same are not traceable."
This would show prima facie that the Charge No.1 as framed against the Applicant/CO, in regard to "defective draft tender document for AR&M work of the hospital", was made in absence of / not supported by the primary evidence, i.e. the alleged defective draft tender document ; and further, it was 28 OA No.142/2024 stated to be not traceable on record though it was a significant material evidence for the findings of the IO and the DA.
18. Further, a third contention has also been made through the pleadings and arguments by the learned counsel for the Applicant. It was submitted thereby that the DA while passing the impugned order dated 17.01.2024 wherein inter alia the stipulation of annual turnover of prospective bidders was said to be in variation with the applicable CVC guidelines dated 17.12.2002 had been issued without factoring in the subsequent guidelines of the CVC and related instructions issued by the ESIC Headquarters itself. Thus, while the CVC guidelines dated 17.12.2002 had indeed stated that "Average annual financial turnover during the last three years ending 31st March of the previous financial year, should be at least 30% of the estimated cost," this was merely illustrative and not mandatory. The same had been clarified by the CVC through the O.M. dated 07.05.2004 that had stated :
"Guidelines were prescribed in this office OM of even number dated 17/12/2002, on the above-cited subject to ensure that the pre-qualification criteria specified in the tender document should neither be made very stringent nor very lax to restrict/facilitate the entry of bidders. It is clarified that the guidelines issued are illustrative and the organizations may suitably modify these guidelines for specialized jobs/works, if 29 OA No.142/2024 considered necessary. However, it should be ensured that the PQ criteria are exhaustive, yet specific and there is fair competition. It should also be ensured that the PQ criteria is clearly stipulated in unambiguous terms in the bid documents." Further, well later, the ESIC Headquarters had initially issued the circular dated 01.02.2012 specifying that :
"The total turnover of the agency must not be less than 20 times the annual estimated work order." ; but had subsequently issued corrigendum dated 06.03.2012 to modify it by substituting "20 times cost of Annual Work" with "reasonable amount commensurate with the annual value of the contract to be awarded."
19. In this regard, the case on behalf of the Applicant was stated to be that the draft tender document placed before the draft TEC by the Estate Branch was the prototype followed in the previous tender also ; and the TEC had thus found that to be reasonable and justified with the amount of estimated cost and it had thus been recommended so by the TEC and concurred to by the Applicant/CO. Apart from the fact that the prequalification minimum of annual turnover had been modified by the Estate branch before publishing the tender, the Applicant had also contended that there were several instances where the Offices under ESIC had prescribed higher annual turnovers than the estimated cost, including those for Housekeeping at ESIC Headquarters and Guest House, 30 OA No.142/2024 Jangpura - which he had furnished as illustration to show that no defect can be inferred on this account in the ARM Tender of ESIC Hospital, Jhilmil. A perusal of the examination eventually relied upon by the DA in this regard would show it to be that :
"... Accordingly, it was desired by the Commission to keep following points in view while fixing the eligibility criteria :
A) For Civil / Electrical works i. Average Annual financial turnover during the last three years ending 31st March of the previous financial years, should be at least 30% of the estimated cost.
which in turn implies that the Annual turnover should always be less than estimated cost. Whereas in the tender which was floated on 02.02.2018, the estimated cost was mentioned as Rs. 3.5 crores per year i.e. Rs. 1.75 Crore (sic) and annual turnover was stipulated at Rs. 5 Crores. Thus, the same was in variation with the CVC guidelines.
Although the said tender was not materialized, the charged officer being DD(F) should have brought the facts to the notice of his higher authorities so as to rectify the error in future. But he did not bother which resulted in wrong stipulation of annual turnover and estimated cost in the tender floated in March, 2018." From the same it is noticed that material evidence was presented by the Applicant that the CVC guidelines, that prescribed a minimum of 30% had allowed for discretion in stipulation of annual turnover of prospective bidders for pre- qualification ; and further, annual turnover higher than the value of tender was stipulated in several other tenders inter alia in that for the ESIC Hospital Jhilmil on previous call for 31 OA No.142/2024 2013-2015 and that for Housekeeping of ESIC Headquarter. Despite it being material and verifiable, the same had prima facie not been considered either by the IO while submitting the Inquiry Report dated 29.05.2023 ; or by the DA while passing the impugned Order dated 17.01.2024.
20. Also further, a fourth contention has also been made through the pleadings and arguments by the learned counsel for the Applicant, whereby it was submitted that while the penalty order mentions about the consultation with the CVC before awarding the penalty, no copies of the related advices of the CVC were provided to the charged officer ; and the same were denied even in response to the RTI application filed after the receipt of the penalty order by the Applicant. It was presented by the Applicant that furnishing of the CVC advices to the charged officer mandated by the CVC vide its circular no 99/VGL/66 dated 28.09.2000 and which has been reiterated subsequently also. The Circular No.02/01/09 dated 15/01/09 of the Central Vigilance Commission presented in this regard was found to inter alia state that :
" .. 2 As regards, making available a copy CVC's first and second stage advices to the employees concerned, the Commission vide its circular No. 99/VGL/66 dated 26.09.2000, had prescribed that the same should be supplied to the employees by the Disciplinary Authorities. It was precisely stated, therein that a copy of CVC's 2 nd stage advice should be supplied to the employee concerned alongwith the Ios report, in order to give him an opportunity to make a representation against IO's findings and CVC's advice.32 OA No.142/2024
3. Instances have, however, come to the notice of the Commission in which the final orders passed in disciplinary cases by the competent disciplinary authorities did not indicate proper application of mind, but a mere endorsement of the Commission's recommendations which leads to an unwarranted presumption that the DA has taken the decision under the influence of the Commission's advice. Further, it is also observed that the DAs in the Departments / Organizations, in practice, do not provide a copy of Commission's advice to the employees concerned. The cases where the final orders do not indicate proper application of mind by the DA and/or non supply of Commission's advises, are liable to be quashed by the Courts."
21. Therefore, the Applicant had contended inter alia - that the DA while passing the impugned order dated 17.01.2024, had failed to consider the material available on record and the documents relied upon by the Applicant/CO ; and that the Charge No.1 as framed against the Applicant/CO, was in regard to allegedly "defective draft tender document for AR&M work of the hospital", the said tender document and the BOQ appended to it - duly financially vetted by the Applicant/CO in the capacity of Deputy Director Finance - which were the primary basis relied upon by the IO and the DA, were not found traceable ; that the Applicant/CO had only vetted a draft tender document, which subsequently before publication had travelled in the hands of the other authorities where the changes of condition took place one after another without the Applicant/CO having any occasion to examine the changed tender document at any point of time ; etc. It had thus been 33 OA No.142/2024 sought that by an appropriate order or direction the impugned order dated 17.01.2024 passed by Chairman Employees State Insurance Corporation and conveyed by Insurance Commissioner be quashed and set aside ; and also, that an interim relief of stay on the operation and effect of the said impugned Order dated 17.01.2024 be allowed till the original application is decided.
22. On part of the Respondents, apart from seeking to rely on the Judgment of the Hon'ble Supreme Court in P. Gunasekaran (supra) to aver that the impugned Order dated 17.01.2024 passed by the DA does not call for any interference by the Tribunal - an aspect that has been dealt with previously herein - other averments were also made. It was thus averred that the punishment awarded to the Applicant had been done after following all due processes. It had been further averred that while as per the record available in the relevant file, the tender was finalized at the level of executing branch i.e. Estate Branch with the approval of Medical Superintendent, but since the Applicant/CO was aware about the wrong stipulation of estimated cost and annual turnover in the tender which was floated on 02.02.2018 and draft of which was concurred by the Applicant, he being head of the Finance Division should have acted responsibly and submitted those facts to the higher authorities. Furthermore, the CVC guidelines issued vide 34 OA No.142/2024 F.NO.12-02-1-CTE-6 dated 17.12.2002 stipulate that the average annual financial turnover of the bidders during the last three years ending on 31st March should be at least 30% estimated cost. However, in gross violation of such guidelines, the annual turnover was kept at Rs. 10 crore arbitrarily which was subsequently reduced to Rs. 5.0 crore and later on further reduced to Rs. 3.0 crore. These stipulations of annual turnover in such an arbitrary manner without recording any justification are violative of CVC guidelines, but the same was accorded financial concurrence by the Applicant as DD (Finance). The Applicant/CO also failed to examine the tender document thoroughly and properly and it had gone unnoticed by him that financial concurrence on the detailed BOQ was not obtained from the DD (Finance) and which was revised whimsically by administration repeatedly.
23. In the conspectus of the preceding examination, analysis and appreciation of the information before us, it would emerge inter alia - that the IO's finding was not specific while holding the Charge No.1 as 'Partly Proved' against the Applicant/CO ; that the significant material evidence for the findings of the IO and the DA being not provided for the defense of the Applicant/CO on the grounds of it being not traceable ; that there was non-consideration of material and verifiable evidence by the IO and the DA regarding stipulation of higher pre-qualification condition of annual turn-over of 35 OA No.142/2024 prospective bidders ; and that copies of the CVC's advices were not provided to the Applicant/CO. Hence, for all the foregoing reasons, we hold that it would serve the interest of justice in this case, if for the present the impugned Order dated 17.01.2024 of the DA (Respondent No.2) as conveyed by the Respondent No.4 to the Applicant be quashed and set aside. We therefore order accordingly.
24. We also order that the case along with its entire record be reverted to the Disciplinary Authority (Respondent No.2) at first for rectifying the deficiencies pointed out herein preceding - inter alia by providing the necessary documents of evidence - and arranging for re-examination of the specific related aspects by the IO in light of the same and other material evidence provided by the Applicant/CO. The IO shall record specific findings as to which imputations of the Charge No.1 were established, if so found, and to what extent - with clear indication of the related basis for such finding. Thereupon, the Disciplinary Authority shall ensure appropriate further action as per duly prescribed procedure, inter alia making available the stipulated documents / the advice of the CVC to the Applicant/CO as made available, before making suitable reasoned and speaking Order thereafter. If, at all, required, the said Order of the Disciplinary Authority may come to be challenged at the appropriate forum by the 36 OA No.142/2024 Applicant. We also clarify that the Inquiry in respect of Charge No.2 shall not be reopened.
25. In view of the same and for the reasons stated, the present O.A. is allowed to the extent of the directions and observations hereinabove. However, in the facts and circumstances of the case, there shall be no order as to costs.
(Lok Ranjan) (Ranjana Shahi) Member (A) Member (J) !Vv