Delhi District Court
Houses Ltd. vs . Wednesbury Corporation (1948) 1 Kb ... on 12 August, 2014
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 2/11
R.C. No. 12(A)/99
Central Bureau of Investigation
Versus
1. Shri R.L. Prasad
S/o Lt. Shri M.L. Prasad
R/o D1/139140, Sector16
Rohini,
Delhi
Store Officer, AIIMS, New Delhi
2. Shri C.S. Rawat
S/o Shri Gopal Singh
R/O G1/1058, Sarojini Nagar,
New Delhi
Retd. Sr. Administrative Officer (Expired)
3. Shri Jagdish Raj
S/o Lat. Shri Munshi Ram
R/o D1/7,37B, Janakpuri
New Dehi.
Retd. Accounts Officer, AIIMS (Discharged)
C.C. No. 2/11 1 of 60
4. Shri Ramphal
S/o Lt. Prem Raj,
R/o 79D, Village Mohammadpur
New Delhi
Retd. Junior Store Officer, AIIMS
5. Shri Rajiv Rastogi
S/o Shri G.D. Rastogi,
R/o X1724, Rajgarh Colony,
New Delhi31
M/s Rajiv Enterprises, New Delhi.
6. Shri M.L. Arya,
S/o Shri Kishan Chand
R/o H. No. 141, Gulmohar Enclave,
DDA Flats, New Delhi (Discharged)
7. Shri S.S. Rawat,
S/o Lt. Shri Narayan Singh Rawat,
B192, Ayurvigyan Naga, Andrews Ganj,
Defence Colony,
New Delhi. (Discharged)
8. Shri S.S. Bhaduria,
S/o Lt. Shri JMS Bhaduria,
R/o G31, AIIMS Campus,
Ansari Nagar
New Delhi.
C.C. No. 2/11 2 of 60
9. Shri S.D. Sharma,
S/o Shri J.L. Sharma,
R/o H. No. 7, TypeII, AIIMS Campus,
New Delhi.
10. Shri M.L. Sharma,
S/o Late Shri Tek Chand
R/o B87, Dashrath Puri, Palam Road,
New Delhi. (Proclaimed Offender)
11. Shri G.N. Singh
S/o Shri T.N. Singh
R/o 122, Bock20, Vikram Vihar,
New Delhi. (Discharged )
12. Shri P.P. Singh
S/o Shri Pritam Singh
R/o H. No. 504, Sector8,
R.K. Puram, New Delhi. (Discharged)
13. M/s Rajeev Enterprises
Through Shri Rajeev Rastogi,
S/o Shri G.D. Rastogi
X1724, Rajgarh Colony,
New Delhi0110031.
Date of Institution : 06.10.2005
Date of hearing arguments : 05.07.2014
Date of Order : 12.08.2014
C.C. No. 2/11 3 of 60
JUDGMENT
Chargesheets There were two chargesheets filed in this case. In the first chargesheet accused S/ Shri R.L Prasad, C.S Rawat, Ramphal and Rajiv Rastogi were named as the Accused. It was stated therein that for the time being chargesheet was being filed against them only, as the sanction under Section 19 of the Prevention of Corruption Act, 1988 was awaited against the other accused, namely, S/Sh. S.S Bhaduria, Attar Singh S.S. Rawat, M.L. Arya, P.P. Singh and G. N. Singh. There was one another person namely Dr. D. K. Sharma mentioned in column number 2 and not chargesheeted because sanction under Section 19 of the Act was not accorded for his prosecution.
2. In the second chargesheet (supplementary chargesheet) S/Shri M. L. Arya, S.S. Rawat, S.S. Bhaduria, S. D. Sharma, M.L. Sharma, G. N. Singh, P.P. Singh were chargesheeted.
C.C. No. 2/11 4 of 60 Shri Attar Singh was not chargesheeted because he had passed away before the second chargesheet had been filed. Accused Shri M. L. Sharma was declared proclaimed offender during the trial and Accused Shri C.S. Rawat had expired. Introduction of Accused
3. Accused Rajiv Rastogi is the Prop. of M/s Rajiv Enterprises. The other Accused except S/Sh. G. N. Singh and P.P. Singh are from AIIMS (All India Institute of Medical Sciences). They are from C.N. Centre and Accounts department of AIIMS. Accused S/Sh. G. N. Singh and P.P. Singh are Assistant Managers from NCCF (National Consumer Co operative Federation). The allegations against all the accused public servants, are that they abused their respective positions as public servants to benefit Shri Rajiv Rastogi, Prop. of M/s Rajiv Rastogi.
C.C. No. 2/11 5 of 60 Allegations in Detail
4. There are three Rate Contracts which are the subject matter of this case. The details of the same are as under:
(i) Rate contract No. XX36/CLG.MAT/96/97ST dated 21/06/1997 with M/s Rajiv Enterprises, M/s Super Bazar, M/s Vishal & Co., M/s Anil Kumar & Co, M/s Himalaya Agencies for supply of cleaning material valid from 16/06/1997 to 15/06/1998.
(ii) Rate Contract No. XX37/Offsty/9697 dated 20/09/1997 with M/s Rajiv Enterprises and M/s Malhotra Enterprises for supply of office stationary items valid from 12.09.1997 to 11.09.98. There were, however, items added in this contract later such as registers, note sheet pads, Typing Papers, File flappers and duplicating papers, some to be supplied by M/s Rajiv enterprises and some by M/s Malhotra Enterprises.
(iii) Rate Contract No. XX46/PTG/STY/9596 dated 15/10/1996 with M/s A S Printers, M/s Nagpal Printers, M/s Delhi Sales Corporation, M/s AS Corporation and M/s Malhotra Art Press, for C.C. No. 2/11 6 of 60 supply of printed stationary items initially valid for the period 1/10/1996 to 30/09/97 which was extended from 1/10/97 to 31/12/1997 by letter dated 29/09/1997; extended further from 1/1/1998 to 31/03/1998 by letter dated 7/01/1998; extended further from 1/4/1998 to 31/05/1998 by letter dated 16/4/1998; extended further from 01/06/1998 to 30/06/1998 by letter dated 05/06/1998; extended further from 1/7/1998 to 31/7/1998 by letter dated 26/6/1998; later extended further from 1/08/1998 to 15/09/1998 by letter dated 31/08/1998 - thus this contract remained in operation from 1/10/1996 to 15/09/1998 continuously.
5. All the departments had the knowledge of these Rate Contracts as they had been circulated to all the departments.
6. Rajiv Rastogi had also Rate Contract with NCCF for the supply of various items which are the subject matter of this case. Only difference was that the Rates at which the items were to be supplied to NCCF were much higher then the Rates prescribed by Rate Contracts under which supplies were to be made to AIIMS.
C.C. No. 2/11 7 of 60
7. It may be noted according to the circular of the Govt. dated 11/04/1994 the orders could be placed with NCCF without following any tendering process. This circular was, allegedly, taken advantage of by the officials of AIIMS at CN Centre by placing orders with NCCF instead of placing orders under said Rate Contracts, for benefiting Rajiv Enterprises who would supply the same items at higher rates being ordered through the NCCF.
8. It is also alleged that in the case of supplies related to cleaning material earlier Rate contract was deliberately allowed to expire and delay caused in the awarding of new Rate Contract by the Accused R. L. Prasad, who was in a position to delay this process by being convener of various purchase committees, and in this interregnum period started the process of placing orders with the NCCF for supplies though there was possibility of placing the orders with the previous contractors.
9. There are other allegations as well in this case. It is alleged that in case of some of the supplies the date of expiry of items had already passed by the time said supplies were made. It is further C.C. No. 2/11 8 of 60 alleged Khadi Dusters supplied were of smaller size than the prescribed size.
Charge
10. After the elaborate discussion at the time of framing of charge many of the allegations were found to be without basis and also it was found that against many of the officials, such as, S/Shri M.L. Arya, Jagdish Raj, S.S. Rawat, Attar Singh (deceased), G.N. Singh and P.P. Singh, there was not enough material to charge them. Accordingly, those allegations were dropped and the said public servants were discharged.
11. The allegations which survived against the remaining accused persons i.e. S/Shri R.L. Prasad, Ram Phal, S.S. Bhaduria and S.D. Sharma all public servants and Sh. Rajiv Rastogi, Proprietor of M/s Rajiv Enterprises related to only following purchase orders : C.C. No. 2/11 9 of 60
(i) Accused S.D. Sharma for Purchase order No. 33/CNC/Sty.9899 dated 08.09.1998 related to rate contract No. XX46/PTG/STY/9596.
(ii) Accused S.S. Bhaduria for Purchase order No. 33/CNC/Sty.9899 dated 08.09.1998 related to rate contract No. XX46/PTG/STY/9596 and Purchase Order No. 01/CNC/Sty. 9899/258 dated 26.06.1998 related to rate contract No. XX46/PTG/STY/9596.
(iii) Accused Ram Phal for Purchase order No. F3/CNC/Gen/9798 dated 21.09.1997 related to rate contract No. XX36/Clg.Mat./9697.
(iv) Accused R.L. Prasad for Purchase order No. 10/CNC/Linen/9798 dated 15.11.1997 and Purchase Order No. 06/CNC/Linen/9798 dated 03.09.1997 related to rate contract No. XX36/Clg.Mat./9697.
C.C. No. 2/11 10 of 60
12. On the basis of the allegations, which survived, as stated above, and the remaining accused persons named above, who had not been discharged or had not been declared proclaimed offender i.e. S/Shri R.L. Prasad, Ramphal, S.S. Bhaduria, S.D. Sharma all public servants and Rajiv Rastogi, Prop. of M/s Rajiv Enterprises, a charge was framed for committing offences under Section 120B IPC read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Substantive charges were also framed against Accused S/Sh. R. L. Prasad, Ramphal, S. S. Bhaduria and S. D. Sharma for committing substantive offence under section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act and Accused Rajiv Rastogi foir committing substantive offence under section 420 IPC to which all the accused had pleaded not guilty.
PROSECUTION WITNESSES
13. During the course of trial prosecution has examined in all 12 witnesses.
C.C. No. 2/11 11 of 60 PW1
14. Witness PW1 Shri Shailsh Kumar Yadav, interalia, had deposed that in the year 2009 he had been working as Dy. Director (Administration), AIIMS, New Delhi and was also holding additional charge of Chief Vigilance Officer, AIIMS. According to him Director had the authority to remove / dismiss from service the employees of the level of Upper Division Clerk. Since Shri S.D. Sharma accused was posted as Upper Division Clerk, therefore, Director at that time, Dr. R.C. Deka was competent to remove him from service. There was a request received from CBI for according sanction under section 19 of Prevention of Corruption Act, 1988. After it was received it was placed before the Director alongwith relevant material provided by CBI with statement of witnesses and other record. Dr. Deka had gone through the entire record and accorded sanction for his prosecution. The witness thereafter was instructed to convey this decision to CBI which accordingly he had conveyed. The witness had identified the order Ex. PW1/A bearing his signatures at points A1 and A2.
C.C. No. 2/11 12 of 60 PW2
15. Witness PW2 Dr. T.D. Dogra had deposed that in the year 2008 he was Director, AIIMS, New Delhi and was competent to remove officers of the level of Assistant Stores Officer on the instructions of the Governing Body, AIIMS. On 27.10.2008 a letter Ex. PW2/A was placed before him by the Chief Vigilance Officer regarding sanction order pertaining to Shri S.S. Bhaduria, Assistant Stores Officer, which he had signed on behalf of the Governing Body. The witness had identified the sanction order dated 27.10.2008 for granting sanction for the prosecution of the accused Shri S.S. Bhaduria bearing his signatures. As per the testimony of this witness the ultimate decision for according sanction for his prosecution was that of the Governing Body of AIIMS. He had identified the noting Ex. PW2/B which he had received alongwith the sanction order. The witness had also identified the signatures of Dr. Venugopal and also the Chairman of the Governing Body Shri Ambumani Ram Doss on the minutes of the meeting Ex.
C.C. No. 2/11 13 of 60 PW4/F dated 05.07.2005 with regard to the according sanction for the prosecution of accused Shri S.S. Bhuduria. PW3
16. Witness PW3 Shri K.D. Sharma who was working as Store Officer in AIIMS was examined generally to know about the procedure with regard to the purchases and awarding of rate contracts. This witness had deposed that Stores Department of Hospital purchases all kinds of items including medicines, surgical items, such as, syringes, gloves, IV Set, BT Set, Bandages, plasters etc., different kinds of cleaning and sanitation material, stationary items etc. According to him the purchases are made on the basis of rate contracts made for common items and other items are made after inviting tenders, limited tenders and also from Government agencies like, Kendriya Bhandar, Super Bazar and NCCF. As per his deposition the rate contracts in respect of medicines are made by Drug Selection Committee, which comprises of Head of the C.C. No. 2/11 14 of 60 Department of Medicines and members from other clinical departments also. For other items like syringes, gloves, IV Set, Bandages material, cleaning material etc. rate contracts are finalized by the Central Stores, AIIMS. According to him the rate contracts with regard to the medicines are circulated by the Main Hospital Stores and for other rate contracts the rate contract is circulated by Central Stores.
PW4
17. Witness PW4 Dr. P. Venugopal had deposed that in the year 2005 he was the Director of AIIMS and Member Secretary of the Governing Body of AIIMS. It was the Governing Body of AIIMS which was competent to remove accused Shri R.L. Prasad from service. The witness had identified the note of agenda relating to sanction of prosecution of accused Sh. R.L. Prasad on page No. 7 of the note Ex. PW4/B. The matter relating to the sanction of prosecution of Sh. R.L. Prasad was take up by the Governing Body on 05.07.2005. He had C.C. No. 2/11 15 of 60 identified the extracts of the said meeting as Ex. PW4/C. The Governing Body had taken the decision for according sanction for prosecution after considering all the material placed before it and satisfied itself. The extracts of the meeting with regard to the according sanction was received in the Vigilance Branch and thereafter a detailed note dated 27.08.2005 Ex. PW4/D was put up before him referring to the sanction accorded by the Governing Body. He had thereafter communicated formal sanction Ex. PW4/A in terms of the Resolution of the Governing Body. The witness had also identified the Schedule II of the Extraordinary Gazette Ex. PW4/F issued by AIIMS whereby the Director, AIIMS was authorized to issue charge sheet on behalf of the Institute and pass such order as mentioned therein.
18. The witness had also identified minutes of the meeting dated 05.07.2005 of the Governing Body of AIIMS Ex. PW4/F whereby after the deliberations vide Item No. 17 sanction was granted for the prosecution of the accused Sh. R.L. Prasad as well as Shri S.S. Bhadhuria.
C.C. No. 2/11 16 of 60 PW5
19. Witness PW5 Shri Sunil Kumar Jain had deposed that he had been supplying the stationary items to AIIMS during the period from 1982 to 1998, during the period he was running his business as a Government Contractor in the name and style of M/s A.S. Printers. The witness had identified the accused Shri R.L. Prasad in the Court and also deposed that he knew the other accused Shri Rajiv Rastogi who was also a supplier during the same period to AIIMS, supplying general items. First he had been making supplies directly to AIIMS and thereafter through NCCF. The witness had identified the delivery challan with regard to the OPD cards supplied by his firm to AIIMS as Ex. PW5/A and carbon copy of the same Ex. PW5/A1. He had also identified the sample of the OPD cards supplied by him Ex. PW5/B, inspection note Ex. PW5/C and carbon copy thereof Ex. PW5/C1. The witness had further identified the order placed on the basis of the same Ex. PW5/D1 and carbon copy thereof Ex. PW5/D2. Similarly, he had identified the order with C.C. No. 2/11 17 of 60 regard to the supply of registers Ex. PW5/E and carbon copy thereof Ex. PW5/E1, the departmental sanction Ex. PW5/F for the said supply and the challan related thereto Ex. PW5/G. He had identified the note Ex. PW5/H related to the said supply and also copy of it Ex. PW5/H1.
PW6
20. Witness PW6 Shri Pradeep Gupta is also a witness of general nature giving the procedure for procurement of items required by the hospital. According to his testimony there was a committee nominated by the competent authority comprising number of experts from different areas of the hospital. This committee after receiving the requirements from different departments floats the tenders with the approval of the competent authority and finalize the tender as per the settled procedure. Once the rate contract is finalized the same is circulated to all the Departments of the hospital. Thereafter every Department places order directly to the contractor as per C.C. No. 2/11 18 of 60 requirement. With regard to the awarding of contract he had submitted that the contract is awarded to the contractors whose rates are found to be lowest. He had clarified that normally they do not go in for verifying rates from the market as these items are generally purchased and the Department has the idea about the rates of such items. The rates are ultimately finalized by the committee by taking into consideration all aspects which comprises of 1516 members. The minutes prepared by this Committee were also placed before another High Power Committee for consideration and approval of the decision taken by this Committee. At the end the witness had clarified that his deposition related to the procedure which was being followed these day in the hospital and not the procedure which may have been followed in the year 199899.
PW7
21. Witness PW7 Shri Om Prakash had deposed about the procedure being followed for procurement and also had C.C. No. 2/11 19 of 60 identified certain documents. After giving the procedure for making the procurements the witness had identified the file Ex. PW7/A related to the issuance of tender for cleaning material. He had identified the handwriting and signatures of Shri R.L. Prasad on the said file. The witness had identified various contracts signed by AIIMS with different vendors for supplying cleaning material including the contract entered with M/s Rajiv Enterprises. As per his testimony the rate contract was for 16.04.1997 to 15.06.1998 which was extended upto 15.09.1998 and thereafter it was not extended. He had also identified the file Ex. PW7/B with regard to awarding of tenders for supply of stationary items bearing his signatures, handwritings and also that of Sh. R.L. Prasad. According to him the rate contract for the supply of printed items were entered into with the five contractors, namely, M/s A.S. Printers, M/s Nagpal Printers, M/s Delhi Sales Corporation, M/s Perfect Printers Stationers and M/s Malhotra Enterprises. The rate contract was valid from 01.01.1996 to 30.09.1997. It was further extended from time to time and finally upto 15.09.1998 as per various letters.
C.C. No. 2/11 20 of 60
22. This witness had also identified file Ex. PW7/C relating to issuance of tenders for stationary items other than printed stationary. He had identified the sanction of Sh. R.L. Prasad on this file. According to said file rates were submitted by the firms, namely, M/s Malhotra Enterprises, M/s A.S. Printers, M/s Perfect Printers Stationers, M/s Kamal Stationaries, M/s Rajiv Enterprises and M/s Super Bazaar Cooperative Stores Ltd. The rate contract finalized with different suppliers with specifications were circulated to different departments under the signatures of Shri R.L. Prasad. Sh. R.L. Prasad had also written letters to M/s Rajiv Enterprises and M/s Malhotra Enterprises alongwith schedule wherein items to be supplied had been mentioned. This contract was valid from 12.09.1997 to 11.09.1998 and it was not further extended.
23. This witness had further identified the file Ex. PW7/D relating to submissions for proposals for changing the specifications for certain surgical items bearing signatures of Sh. R.L. Prasad on various files. The witness, however, stated that C.C. No. 2/11 21 of 60 from the file it appears that though the process was initiated but nothing was finalized.
PW8
24. Witness PW8 Shri Anil Kumar Anand had deposed that he was into the business of supply of various items to various hospitals in Delhi and he has his business in the name and style of M/s Anil Kumar & Co. According to his testimony he had been making supplies to AIIMS some time in 1997 to 1998. The item which he had supplied to AIIMS were general items and cleaning material such as, brooms, brushes, phenyl, plastic items like mugs etc. During this period he had not supplied stationary items to AIIMS though he had supplied 203 stationary items to AIIMS in the year 197879. The witness had identified one agreement arrived at between him and AIIMS Ex. PW8/A. PW9
25. Witness PW9 Shri C.K. Sharma who was the one of the Investigating Officer in this case had deposed that in the C.C. No. 2/11 22 of 60 year 1999 he was posted as Inspector with CBI, ACB, New Delhi and the investigation was handed over to him after the registration of the FIR on 04.03.1999 Ex. PW9/A by the then S.P. Shri N. N. Singh. The FIR was registered on the basis of a surprise check conducted at the Stores of AIIMS, New Delhi wherein it was found that the orders had been placed for items unauthorizedly to M/s Rajiv Enterprises. It was also found that the material supplied by M/s Rajiv Enterprises was sub standard. The orders were placed on M/s Rajiv Enterprises for supplying the items such as, gauze cloth and gauze bandage despite knowing M/s Rajiv Enterprises did not have the license to supply the same. After the investigation had been handed over to him he had got conducted a search under section 165 Cr.P.C. at the offices and residences of S/ Shri D.K. Sharma, R.L. Prasad, S.S. Bhadhuria, M.L. Sharma named in the FIR and also in the office and residence of M/s Rajiv Enterprises. He had also recovered certain bunch of documents from one Shri A. K. Singh of NCCF having details of "commission" being paid by the suppliers to the officials of NCCF and also the C.C. No. 2/11 23 of 60 officials of AIIMS. After taking the specimen handwriting of said Shri A.K. Singh and one another officer of NCCF Shri P.P. Singh he had sent the bunch of papers of CFSL for comparison with the specimen handwriting and its opinion.
26. One may note that no such document had been relied or placed on record in this case, including the CFSL report, if any.
27. He had gone through the documents recovered from residence of Shri R.L. Prasad and after scrutiny of the same it appeared to him that he was in possession of assets disproportionate to the known sources of his income and, therefore, got a case registered against Shri R. L. Prasad.
28. He had recorded the statements of Shri Pradeep Gupta from AIIMS, Shri O.P. Upadhya and Sh. V. Vaidyanathan of NCCF under section 161 Cr.P.C.. The case thereafter was transferred to Shri H.K. Lal.
C.C. No. 2/11 24 of 60 PW10
29. Witness PW10 Shri P. Balachandaran had deposed that in the year 1998 he was posted as Inspector, CBI, ACB, New Delhi. On 30.10.1998 he had conducted a surprise check at AIIMS on the orders of his superior officers and had prepared a surprise check memo Ex. PW10/A. In the surprise check he had taken 13 samples of different items which had been mentioned in detail in the memo. The witness had also identified one receipt memo Ex. PW10/B with regard to certain files received by him from Shri S.S. Bhadhuria, Asstt. Stores Officer. The file which he had received were identified by him Ex. PW10/B1 and B2. The witness had identified the signatures of Shri H.K. Lal Ex. PW10/C and PW10/D, who had passed away during the course of the trial. There is, however, no evidence adduced as to what happened to those samples. PW11
30. Witness PW11 Shri D.K. Singh identified one seizure memo Ex. PW11/A with regard to the documents referred in the C.C. No. 2/11 25 of 60 memo seized by him from Shri S.S. Rawat. He had also identified files Ex. PW11/A1 seized by him vide the said memo referred to in the seizure memo at serial No. 10. Similarly, he had also identified the file Ex. PW11/B1 to B4 seized vide memo Ex. PW11/B, Shri Attar Singh one of the employee of AIIMS and files Ex. PW11/C1 to C3 vide memo Ex. PW11/C also from the said Shri Attar Singh.
PW12
31. Witness PW12 Shri Pankaj Bansal had deposed that in the year 2009 he was transferred from SICIV, New Delhi and entrusted with the case as Holding IO. The previous IO Shri Karan Arya (H. K. Lal) had filed the first charge sheet, in 2005. The charge sheet, however, could not be filed against some of the officers/officials of the AIIMS/NCCF because sanction for their prosecution was being awaited from the competent authority. After having the sanction of Shri M.L. Arya, Shri S.S. Bhadhuria, Shri S.S. Rawat, Sh. G.N. Singh, Sh. P.P. Singh and C.C. No. 2/11 26 of 60 Shri S.D. Sharma, some obtained by him and some by previous IO were handed over to him, he had scrutinized the documents and filed a supplementary charge sheet alongwith relied upon documents and statement of witnesses recorded under section 161 Cr.P.C.
Statement of Accused under Section 313 Cr.P.C
32. All the incriminating evidence which had come on record in the evidence was put to the accused persons and their statements under Section 313 Cr.P.C were recorded. No witness in defence was examined by any of the accused persons.
HEARING OF SUBMISSIONS
33. I have gone through the record of this case as well as the written submissions submitted on behalf of accused persons. I have also heard Ld. PP for CBI as well as Ld. Defence Counsels.
C.C. No. 2/11 27 of 60
FINDINGS
Purchase of printed stationary items vide purcashe order no. 33/CNC/Sty.9899 dated 08/09/98.
34. The allegations relevant to above purchase order as given in the chargesheet in the tabulated form read as under:
S. SO No & Proposed by Processed Item Quantity Rate of NCCF Rate NCCF Bill Bills of M/s Date and issued approved No. & Date Rajiv No by supplier of (In Rs.) raised on Enterprises AIIMS (In AIIMS raised on Rs.) NCCF.
8 33/CNC/ SD Sharma S.S. File 500 nos. 1190 per 4000 per ---- 1451 dated
Sty.98-99 Bhaduria cover thousand thousand 23.04.98
dated with
08.09.98 heavy
duty
eye let.
35. The allegation against Sh. S. D. Sharma is that he had process the case for supply of file covers with heavy duty eyelets to be purchased from NCCF and on the basis of the same file covers with heavy duty eyelets had been purchased from NCCF at a higher price supplied to NCCF by M/s Rajiv Enterprises, with whom AIIMS also was having a rate contract subsisting during the same period wherein the rate given by it were lessor. In the order of charge it was noted "As far as the C.C. No. 2/11 28 of 60 printing stationary is concerned as has already been noted above the same is covered by Rate Contract No. XX46/PTG/STY/9596 dated 15/10/96 and this contract remained in operation from 01/10/96 to 15/09/98. It is apparent that these orders had been placed at a time when the rate contract was in force." I had made the calculations on the basis of the number of file covers for which the order had been placed as to what loss it had resulted in to AIIMS taking into account the difference in the rates at which it could be purchased on the basis of the rate contract and the rates on which was purchased from NCCF. In the table, the number of files purchased were stated to be 500 and on making the calculations the difference was found to be Rs. 1405/ At the time of writing the judgment I had once again gone through the record and found that the figure given in the charge sheet in the tabulated form was not correct. It was not 500 but 5000. In any case in my opinion the same would not make any difference to my finding on the issue for the reason that though it was mentioned in the order on charge that the rate contract no. 33/CNC/Sty.9899 which was C.C. No. 2/11 29 of 60 extended from time to time had remained in force from 01/10/96 to 15/06/98, that is to say that it was in force even at the time the order dated 07/04/98 was prepared by Sh. S. D. Sharma for the purchase of 5000 file covers but On the closer examination I have found that the rate contract which was extended by letter dated 07/01/98 had expired on 31/03/98 and it was thereafter again extended for a further period of 01/04/98 to 31/05/98 by a letter of 16/04/98. Meaning thereby when it was extended on 16/04/98 it was extended from the back date i.e. 01/04/98. The purchase proforma was prepared by Sh. S. D. Sharma on 07/04/98 and it is clear that in real terms on 07/04/98 there was no rate contract in existence. I also find in this note that the stock position of file covers was given as only '100'. Apparently, therefore, there was an urgent necessity to make the said purchases and thus Sh. S. D. Sharma could not have been blamed for processing the case for placing order on NCCF for making the purchase of said file covers. For the same reason Sh. Sh. S. S. Bhaduria also cannot be blamed to have approved the said purchase. I have also found one more additional factor C.C. No. 2/11 30 of 60 for which intention of Sh. S. S. Bhaduria cannot be doubted in this matter and that is, initially the proposal which was given was for purchase of 10,000 file covers but seemingly Sh. Bhaduria had reduced this to half making it 5000. If he had the intention to cause wrongful gain to Sh. Rajiv Rastogi or wrongful loss to AIIMS he would not have reduced this quantity and allowed it to remain the same to maximize the benefit to Sh. Rajiv Rastogi as is alleged by the prosecution.
36. I have made the above observations without going into the question if the prosecution has been able to prove the relevant documents related to the said purchase or to connect Sh. Rajiv Rastogi with the supply of the said covers to NCCF which in turn supplied the same to AIIMS. I may state here that there is no witness examined from AIIMS to prove the documents related to the purchase of the said items. A file connected thereto Ex.
PW11/C1 was merely exhibited on the basis of a statement given by Sh. D. K. Singh, Inspector who had simply seized this file from the office records. It may further be noted that C.C. No. 2/11 31 of 60 reference point on the basis of which the allegation had been made that the purchase had been made from NCCF at higher rates and the supplies had been made to NCCF of said file covers by M/s Rajiv Enterprises has not been proved. In the table of the charge sheet there is reference to bill no. 1451 dated 23/04/98 against which allegedly the supplies had been made by M/s Rajiv Enterprises to NCCF. The said bill has not been placed on record nor any one has been examined from NCCF to prove this allegation.
37. In view of the above in my opinion that so far as the purchase of printing stationary vide purchase order No. 33/CNC/Sty.9899 is concerned neither the conduct of Sh. S. D. Sharma nor that of Sh. S. S. Bhaduria can be said to be criminal aimed at benefiting sh. Rajiv Rastogi of M/s Rajiv Enterprises or causing wrongful loss to AIIMS or they having abused their position to benefit Sh. Rajiv Rastogi of M/s Rajiv Enterprises.
C.C. No. 2/11 32 of 60
38. In conclusion one may say that prosecution has failed to prove that the either Accused Sh. S.D. Sharma or Accused Sh. S.S. Bhaduria with references to the said purchase order abused their position as public servant and obtained pecuniary advantage for Accused Rajiv Rastogi Proprietor of M/s Rajiv Enterprises and committed offence under section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act, 1988.
Purchase of printed stationary such as OPD cards etc. vide Purchase order no. 01/CNC/STY/9899/258 dated 26/06/98
39. The allegation related to above purchase order as given in the chargesheet in the tabulated form reads as under:
S. SO No & Proposed Processed Item Quantity Rate of NCCF Rate NCCF Bills of Date by and issued approved Bill No. & M/s Rajiv No by supplier of (In Rs.) Date Enterpris AIIMS (In raised on es raised Rs.) AIIMS on NCCF.
9 01/CNC/ Not by S.S. OPD Card, 20,000, (Per thousand) (Per thousand) 3789 dated --
neurology/neurosur 20000, 40000, 160, 360, 520, 1500, 520, STY/98-9 anyone Bhaduria gery/OPD files 14" 10000, 140,150, 150, 500, 300, 500 09.07.98 9/258 x 12', 1 to 7, 42.40 each, each, 520 each, dated cardiology record 40,000 42.40 each, 70, 150 each, 10 room set, ECG 70, 143.38, 150, each, 300 per 26.06.98 Form, Treatment 20,20, 151,151, 78, thousand 500, book, register, 30000 140, 520, 500, 300, report book, 1000 all per register, VHS form, 20000 (for each item) thousands25 non faculty form, each, 50 each, 25 C.C. No. 2/11 33 of 60 blood chemistry 30000 12.50 each, each 50 each, 50 form, clinical path each, 25, each, form, neuro 20000 19.50 each, 25 each, 3500 progress form, each, 300 per MR-6 MR-8, MR-3, 5000 12.50 each, thousand Temp. Chart, 5000 19.50 each, consent form, EL/CL/Joining tem. 10000 19.50 each, Adv. form, laundry slip, reimbursement, 10000 20.50 each, A & D Form, 19.50 each 1190 receipt reg., exp. 100,100 per thousand Reg. Prescription and 150 per 100, thousand slip, admission slip, X ray form, consent 100,100 respectively.
Form, attendance
card, daily 100,100
attendance chart,
donor chart, 20000
investigation detail
form, doctor call 1,20,000
book, repair book, (all in nos
computer book, resp.)
indent book, peon
book, blood bank
book, angio CT,
Patient A/c file,
R-1,2,3,5,7,9 forms.
40. It is alleged that during the rate contract No. XX46/PTG/9596 was subsisting Sh. S. S. Bhaduria had made the purchase of printed stationary like OPD Cards, ECG Forms, OPD files etc. and caused loss to AIIMS by placing the order directly on NCCF instead of purchasing the said items as per the rate contracts.
41. What I find on record is just one photocopy of invoice dated 09/07/98 of NCCF raised on AIIMS with regard to supply of printed stationary and no other document to establish the C.C. No. 2/11 34 of 60 allegation that the purchase order relating to the same had been prepared by Sh. S. S. Bhaduria. There is no witness examined from NCCF to even prove this document. It was the duty of the Investigating Officer to find out as to how the entire process got initiated leading to the purchase of the said printed stationary. There is, however, no such document collected by the Investigating Officer.
42. In any case on examining the said invoice I find that the said printed stationary had been dispatched to AIIMS on 26/06/98. Meaning thereby that the entire process for making the said purchase from NCCF must have started earlier. I find like in the above purchase order for file covers that there was a period in which there was no rate contract in existence and it was extended from the back date. The rate contract came to an end on 31/05/98 which was extended on 16/04/98 and thereafter it was extended on 01/06/98 to 30/06/98 by a letter of 05/06/98. Meaning thereby that for almost a week in between there was no rate contract. It would be difficult to say in absence C.C. No. 2/11 35 of 60 of any document being collected as to what was the stock position as on 31/05/98 which necessitated the purchase of the said items directly from NCCF. I also find that there is completely no evidence on record that if it was done to benefit any particular individual or even by making such a purchase any loss had been caused to the AIIMS. In the table which is given in the charge sheet there is reference made to the NCCF rates in column no. 7 and also the rate as per the rate contract in column no. 6. In column no. 4 there is reference to the printed stationary purchased. From the table it is nearly impossible to relate as to what item had been purchased at what rate from NCCF or at what rate it could be purchased at as per the rate contract. One would also find that in the table itself it is not mentioned that if these items had been purchased by NCCF from Sh. Rajiv Rastogi against any particular invoice. There is also no document placed on record to prove that the said items had been purchased by NCCF from M/s Rajiv Enterprises and in turn had been supplied by NCCF to AIIMS, thus indirectly benefiting accused Sh. Rajiv Rastogi.
C.C. No. 2/11 36 of 60
43. In my opinion, in the above given circumstances the prosecution has failed to connect Sh. S. S. Bhaduria with the purchase of the said items and also that as a result of the said purchase any loss had been caused to the AIIMS or Sh. Rajiv Rastogi had been benefited as a result of the said purchase. In other words the prosecution has failed to prove that in respect of the said purchase order the Accused Sh. S.S. Bhaduria abused his position as public servant and obtained pecuniary advantage for Accused Rajiv Rastogi Proprietor of M/s Rajiv Enterprises and committed offence under section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act, 1988. Purchase of cleaning material such as Cleanzo Tins 15 ltr, Hard Brooms, Soad Ash Bags, Odonil Sticks and Urinal Sanitary Cubes vide purchase order No. F3/CNC/Gen./9798 dated 21.09.1997.
44. The allegation related to above purchase order as given in the chargesheet in the tabulated form read as under:
C.C. No. 2/11 37 of 60
S. SO No & Proposed by Processed Item Quantity Rate of NCCF NCCF Bill Bills of
Date and approved Rate (In No. & Date M/s Rajiv
No issued by supplier of Rs.) raised on Enterpris
AIIMS (In AIIMS es raised
Rs.) on
NCCF.
1. F3/CNC/ Ram Phal C.S Cleanzo Tin 200 Tins 139 each 184 each 35134 12270-7
Gen./97- Rawat 15 Ltrs. dated 1 dated
98 dated 29.09.1997 25.09.19
21.09.19 97
97
Hard Broom 25 Nos. 9.30 each 12.00 each
Soda Ash 70 2 bags 870.48 each 1,085/-
KG. each
Odonil Stick 100 Nos. 10.48 each 15.00 each
Urinal Sty. 50 Pkt. 54 each 64.98 each
Cubes
45. It is alleged that for the purchase of the above items from NCCF accused Sh. Ram Phal had prepared a note dated 16/09/97. The note was prepared at a time when the rate contract to purchase the above items was in existence. The said items could be purchased at lower rates on the basis of the rate contract but were purchased from the NCCF in order to benefit Sh. Rajiv Rastogi of M/s Rajiv Enterprises indirectly because those items were to be supplied to NCCF by Sh. Rajiv Rastogi of M/s Rajiv Enterprises.
C.C. No. 2/11 38 of 60
46. First of all without going into the question that the prosecution has been able to prove the relevant documents as required by law to prove the allegation against the accused Ram Phal, though on the face of it can be said that the said order had been placed at a time when there were valid rate contracts in existence, for the supply of different kind of cleaning material vide order no. XX36/Clg.Mat./9697 for period 16/06/97 to 15/06/98, but there is no document or evidence collected by the investigating officer that the said items had been supplied by M/s Rajiv Enterprises to NCCF to establish that by making the purchase from NCCF benefit had been caused to M/s Rajiv Enterprises. In the absence of any such connection been made it would not be possible to say that as a result of placing the orders on NCCF for the said items any benefit had been caused to M/s Rajiv Enterprises. There is one more factor which one should take note of that when the supplies are made by the organizations like NCCF, they would not make the supply at the same rate at which it may have received the items from the vendor with whom it may be having a rate contract. It would C.C. No. 2/11 39 of 60 always do so by adding into it some percentage towards its own profit. This is an angle which the Investigating Officer had not examined, (I may say so in respect of all the purchase orders), before jumping to the conclusion that as a result of supplies being made by the NCCF the benefit had been given to M/s Rajiv Enterprises ( assuming the supplies had been made to NCCF by M/s Rajiv Enterprises) . Therefore, though this order may have been placed at a time when rate contract may have been in existence for the purchase of said items but unless there was some figure available at the which said supplies had been made to NCCF by M/s Rajiv Enterprise and then at what rate NCCF had added its profit before making supplies to AIIMS. It cannot be said if at all any profit was made by M/s Rajiv Enterprises in this entire process or the order had been placed on NCCF to benefit M/s Rajiv Enterprises.
47. Coming to the second issue if the prosecution has been able to prove the said documents, in my view the prosecution has failed to prove the note related to the purchase said items C.C. No. 2/11 40 of 60 dated 16/09/97 had been prepared by Sh. Ram Phal. Prosecution has not examined any witness from AIIMS ( not even cited) who could at least identify the signature of Sh. Ram Phal on th said purchase note. The prosecution has even failed to establish that as to how the file related to the said purchase order had been seized by the Investigating Officer. In other words the prosecution has failed to prove that the note dated 16/09/97 relating the proposal for the purchase of the said items had been prepared by the accused Sh. Ram Phal. It may be added that though there is one copy of supply order and one bill of NCCF has been placed on record but no witness had been cited to prove the same. In other words, the prosecution has failed to prove these documents to even show that any order had actually been placed on NCCF or any bill had been raised by NCCF on AIIMS relating to the said purchases.
48. In the above given circumstances in my opinion the prosecution has failed to prove either that the said order had been processed by Sh. Ram Phal or that it was done to benefit C.C. No. 2/11 41 of 60 M/s Rajiv Enterprises or that as a result of it any benefit had been caused to M/s Rajiv Enterprises or that it resulted any loss to AIIMS or that there was any supply order placed on NCCF for the supply of items referred to in the table in para 44 or NCCF had raised any bill for having supplied the said items to AIIMS. To conclude, the prosecution has failed to prove that the Accused Sh. Ram Phal abused his position as public servant and obtained pecuniary advantage for Accused Rajiv Rastogi Proprietor of M/s Rajiv Enterprises and committed offence under section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act, 1988.
Purchase of Duster Swab and Duster Khadi vide purchase orders no. 10/CNC/1/LINEN/9798 and 06/CNC/LINEN/9798.
49. The allegations relevant to above purchase order as given in the chargesheet in the tabulated form reads as under:
C.C. No. 2/11 42 of 60
S. SO No & Proposed Processed and Item Quantity Rate of NCCF NCCF Bill Bills of M/s
Date by issued by approved Rate (In No. & Date Rajiv
No supplier of Rs.) raised on Enterprises
AIIMS (In Rs.) AIIMS raised on
NCCF.
1. 10/CNC/1 ML Sharma RL Prasad on Duster Swab 100 Dozen 9.40 each 18.00 each 38451 dated 1322 dated
/Linen/97- on 01.04.1997 & 05.12.1997 02.12.1997
98 dated 01.04.1997
15.11.199 Duster 100 Dozen 3.98 each 8.00 each
7 Khadi
2. 06/CNC/L ML Sharma RL Prasad Duster Swab 100 Dozen 9.40 each 18.00 each 38450 dated 1279 dated
inen/97-98 on 01.10.19197 01.10.1997
dated 01.04.1997 Duster 100 Dozen 3.98 each 8.00 each
03.09.199 Khadi
7
50. The charge was framed against the accused Sh. R. L. Prasad for having issued the above purchase orders for the purchase of Duster Swab and Duster Khadi from NCCF, prepared by his coaccused Sh. M. L. Sharma at a time when the rate contract no. XX36/Clg.Mat/9697 for the supply of the said items was in existence from 16/06/97 to 15/06/98. Like above, in this case also no document has been placed on record by the prosecution to prove that the said items had been supplied by Sh. Rajiv Rastogi of M/s Rajiv Enterprises to NCCF and thereafter NCCF having supplied the same to AIIMS. Also the Investigating Officer made no effort to find out that at what exact rate the said items had been supplied by M/s Rajiv C.C. No. 2/11 43 of 60 Enterprises to NCCF (if at all he had made supplies) and after adding what profit margin the NCCF had sold the said items to AIIMS. In the absence of the same in my opinion absolutely no inference can be drawn that the said orders had been placed on NCCF, with a view to bnefit M/s Rajiv Enterprises.
51. In any case the prosecution has failed to prove any of the document seized relating to the said purchases from any witness from AIIMS. The Investigating Officer did not even bother to name any one from AIIMS who could at least identify the signatures of Sh. R. L. Prasad on the relevant documents. It may be noted that there were two files SO No. 10/CNC/1/Linen/9798 dated 15/11/97 Ex. PW 11/B1 and SO No. 06/CNC/Linen/9798 dated 03/09/97 Ex. PW 11/B2 seized which relate to the above two supply orders. In the said files there is a photocopy of a note dated 01/04/97 at page nos. 1 to 3 whereby the proposal was given for the purchase of many items, in fact 13 in number, including the above items. The Investigating Officer did not even collect the originals of the C.C. No. 2/11 44 of 60 same. The said document, as available in the file Ex. PW11/B1 was put to PW4 Dr. P. Venugopal in the cross examination for identify the signatures of some of the Senior Doctors of AIIMS. He had identified the same but did not vouch for the integrity of this document and refused to answer the question relating to the size of the Duster Swab and Duster Khadi without having shown the original. The relevant part of his testimony reads as under: "It is correct that a point X the dimensions of the duster swab and duster khadi had not been mentioned. (Vol.) It is a photocopy. It must have been mentioned in the original document sent for the tendering process. It is correct that as per this document the purchases had been approved to be made from NCCF."
52. Meaning thereby that there could be some thing more in the original of the said document than that could be seen in the photocopy. In the said files also there are orders shown to have been signed by Sh. R. L. Prasad having been placed on NCCF. As stated above no one was examined or cited as witness from C.C. No. 2/11 45 of 60 AIIMS to prove the said documents. In my opinion, therefore, the prosecution has failed to prove the note by which the proposal was given for the purchase of the said items and also the orders placed on the NCCF dated 15/11/97 and 03/09/97 by Sh. R. L. Prasad.
53. Thus the prosecution has failed to prove first that Sh. R.L. Prasad was responsible for placing the said orders and secondly assuming he did, the prosecution has failed to prove that as a result of it any benefit had been caused to M/s Rajiv Enterprises or it was aimed to cause may benefit to M/s Rajiv Enterprises. In other words the prosecution has failed to prove that the Accused R.L. Prasad abused his position as public servant and obtained pecuniary advantage for Accused Rajiv Rastogi Proprietor of M/s Rajiv Enterprises and committed offence under section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act, 1988.
C.C. No. 2/11 46 of 60 Allegation against Sh. Rajiv Rastogi of his having manipulated the placing of orders on NCCF despite the rate contracts being in existence for the supply of the same items and then supplying the said items through NCCF.
54. There is no evidence direct or indirect produced on record by the prosecution which may even remotely suggest that it was Sh. Rajiv Rastogi who was instrumental in the above orders being placed on NCCF. It may be added the question of him being benefited as a result of the said supplies could have arisen if the Investigating Officer had collected some documents with regard to he having been awarded rate contracts by NCCF for supplying the said items and it having been raised the bills on NCCF for the said items. As has already been noted above assuming that the supplies had been made by M/s Rajiv Enterprises to NCCF who in turn supplied to AIIMS, it could not have been at the rates at which it may have awarded the rate contract to M/s Rajiv Enterprises. but it must have quoted the rate to AIIMS after adding its own profit margin. Unless there had been some investigation on this respect no conclusion can C.C. No. 2/11 47 of 60 be reached that how much benefit M/s Rajiv Enterprises could have derived as a result of such an arrangement. In conclusion there is no evidence against Sh. Rajiv Rastogi to either show his complicity with the officials of AIIMS in placing the orders with NCCF or he having been benefited as a result of it.
55. I am of the view the prosecution has failed to bring on record any evidence to prove that he has committed any criminal offence much less of having cheated AIIMS and thus committed offence punishable under section 420 IPC. Sanction of Prosecution of accused Sh. R.L. Prasad and Sh. S. S. Bhaduria
56. There is no dispute that in the case of both the accused i.e. Sh. R. L. Prasad and Sh. Sh. S. S. Bhaduria, it was the Governing Body of AIIMS which was the competent authority to accord Sanction for their prosecution. The prosecution had examined PW4 Dr. P. Venugopal, the then Director AIIMS and C.C. No. 2/11 48 of 60 PW2 Dr. T. D. Dogra, the then Director AIIMS who had conveyed the Sanction accorded by the Governing Body to Sh. R. L. Prasad and Sh. S. S. Bhaduria by sanction order dated 30.08.05 Ex. PW4/A and sanction order dated 27.10.08 Ex. PW2/A respectively.
57. I have seen the minutes of meeting of the Governing Body Ex PW4/F as against the agenda item GB/17 with regard to according sanction for the prosecution of the said two accused and the same reads as under "After detailed deliberation and considering the request of the CBI, ACB, it was decided to grant prosecution sanction in respect of Sh. R. L Prasad and Sh. S. S. Bhaduria. It was also decided the Departmental Inquiry should be initiated against Dr. I.B. Singh, Assistant Professor (now Associate Professor); Sh. S. P. Vashist, Sanitary Inspector (now Sanitation Officer) and Sh. S. S. Rawat, Store Keeper (now Junior Stores Officer)."
C.C. No. 2/11 49 of 60
58. In the present case there was a note proved by the prosecution Ex. PW4/B relating to the facts on the issue of according sanction for the prosecution of the accused Sh. R. L. Prasad and Sh. S. S. Bhaduria. In my opinion once the said note has been proved and placed before the Governing Body as item no. GB/17 it can be said that there was material before the Governing Body to take a decision with regard to granting or refusing the grant sanction for the prosecution of accused Sh. R. L. Prasad and Sh. S. S. Bhaduria. I am of the view the same is sufficient to show that the Governing Body did have all the facts before it, before taking the decision thereon to accord sanction for their prosecution.
59. One of the lines of the cross examination adopted on behalf of Sh. S. S. Bhaduria was that actually no such meeting took place. There was an emphasis in the cross examination of Dr. P. Venugopal, who was also the Member Secretary of the Governing Body, that the minutes book though had the names of the members attending the meeting mentioned but did not have their signatures meaning thereby that they had actually not C.C. No. 2/11 50 of 60 attended the meeting. PW4 Dr. P. Venugopal had completely denied that no such meeting took place. According to him the attendance of the members was taken on a separate sheet and the names of the persons attending the meeting were mentioned in the minutes of meeting also. Later he had explained that the attendance of the persons attended the meeting can be confirmed from the Administration Branch. According to him the minute book is only signed by the Chairman and the Member Secretary. The attendance of the member attending the meeting remains with the Administration Branch, General Section. In my opinion it explains clearly why the minute book did not have the signatures of the other members who had attended the meeting of the Governing Body. When it was suggested to the witness that a number of times the consent of members of the Governing Body is taken by circulation of the agenda and not by actual meeting. The witness had explained that it was possible that the agenda items may be circulated and their opinion may be taken but it happens very rarely and only in urgent decision making proposals.
C.C. No. 2/11 51 of 60
60. After having gone through the testimony of the witness PW4 Dr. P. Venugopal and the above explanations given in the cross examination, in my opinion there is no ground to believe that no such meeting took place where in the matter relating to according sanction of the said two accused persons had been discussed.
61. The other issue which is raised in the cross examination was that the Governing Body did not have the material to examine to reach the conclusion if the sanction for prosecution is to be accorded or not. In addition to it, it was also put to the witness that there was a draft sanction supplied by CBI to AIIMS for according sanction meaning thereby the sanction was accorded in terms of the said draft without the application of mind.
62. First of all I would like to point out that the words used in the resolution "detailed deliberation" are significant because they really convey that the exercise which was taken up was not C.C. No. 2/11 52 of 60 mechanical. The words used "considering the request of CBI"
also indicate that the Governing Body had with it the report and the request of CBI to accord sanction. I have in general gone through the other items also which were there before the Governing Body and it does not appear to be that the Governing Body was discharging its function mechanically. I find no reason to doubt the action of the Governing Body when it says that the decision was taken after detailed deliberation. In addition to it I would like to point out that on the request of the defence the extracts of the file of the vigilance branch of AIIMS Ex. PW4/DX3 (colly.) taken on record. These records include a note of department prepared in relation to the agenda item in question, detailed SP's report and other related documents. If these documents were on record of the vigilance file there is absolutely no reason that in the normal course of the administration work these documents would not have been placed before the Governing Body. In so fas as the question of 'Draft Sanction' being provided by CBI is concerned that would not necessarily lead to the conclusion that the Governing Body C.C. No. 2/11 53 of 60 merely endorsed what had been started by CBI. If the question had been that the CBI had sent no papers to AIIMS except the draft sanction, may be there was some reason to say that the authorities had simply toed the line of the CBI. As has already been stated that there was not just the draft sanction but a complete report which was forwarded by CBI for sanction for the prosecution of the accused persons.
63. I would like to refer section 114 illustration F of the Indian Evidence Act to draw a presumption of fact that "official acts have been regularly performed". The defence in my view has failed to dislodged the said presumption.
64. I would also like to note that according sanction is an administrative act and it is to be judged on the same parameters as a court is supposed to apply to evaluate an administrative act like as to whether the authority according sanction was competent to accord sanction and that while according sanction the sanctioning authority did not get swayed by the C.C. No. 2/11 54 of 60 considerations which should not have influenced its decision or it had taken into account something which it should not have, while arriving at its decision [Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation (1948) 1 KB 223]. In so far as the fact that the Governing Body was competent to accord sanction has not been disputed. There is no allegation of bias against any of the members of the Governing Body and I find absolutely no ground to believe that the Governing Body which had a Cabinet Minister as its Chairman and the Director of AIIMS as its Member Secretary could be swayed or pressurized to accord sanction for the prosecution of the accused persons, if they did not want to.
65. I am of the view that in the above given circumstances there is no reason to state that the sanction in this case had been accorded for the prosecution of accused Sh. R. L. Prasad and Sh. S. S. Bhaduria mechanically or without the application of the mind by the Governing Body.
C.C. No. 2/11 55 of 60 Sanction for prosecution of accused Sh. S. D. Sharma.
66. The first question raised by the defence with regard to granting of sanction for prosecution as against Sh. S. D. Sharma is that as to whether the Director was competent to remove the accused from service. In the crossexamination the reference was made to AIIMS Regulations 1999 and suggestion was given to the witness PW1 Sh. Shailesh Kumar Yadav, the then Dy. Director AIIMS who had conveyed the sanction, that Director could have given the sanction only after a resolution had been passed by the Governing Body of AIIMS in this regard. I have seen the regulation and I find that this is not the case. The regulation Schedule II clearly states that in case of Group 'C' employees, it is the Director who is competent to impose all penalties. The confusion appears to have been created by a note below the said Schedule which is not happily worded. The same reads as under: "Authorization of the Director, All India Institute of Medical Sciences - to issue the Chargesheet and statement of allegations, penalties ans suspension C.C. No. 2/11 56 of 60 orders after obtaining the approval of the Governing Body/President, All India Institute of Medical Sciences, as the case may be. The notices, the chargesheet and statement of allegations would be all signed by the Director for and on behalf of the Governing Body or the President, as the case may be, and the documents will also expressly state this fact. Phrases like 'By order of Governing Body' or 'the President' or the 'approval by the Governing Body' or the 'President' can be used on such documents."
67. In my opinion this note is only referring to the cases where Governing Body is competent to initiate disciplinary actions and impose penalties. It only clarifies that how a Director is supposed to convey the same on behalf of the Governing Body. It does not refer to the cases where Director himself is competent to take the action.
68. There is another issue involved here and that is, though it was the Director who was competent to remove Sh. S. D. Sharma from service but his decision had been conveyed not by the Director himself but by his subordinates i.e., Dy. Director Sh.
C.C. No. 2/11 57 of 60 Shailesh Kumar Yadav examined as PW1. There can be cases where there are some rules in place where the decision of an authority can be conveyed by another authority. Like it is provided in the AIIMS Regulations 1999 itself that Director is authorised to communicate the decisions of the Governing Body. No rule or regulation has been brought to my notice which permitted that the sanction accorded by the Director could be conveyed or signed by the Dy. Director. For the arguments sake even if it is accepted that he could do so there was no excuse for dispensing with the examination of the Director who had accorded the sanction for the prosecution of the accused. In my opinion his non examination by the prosecution has deprived the defence an opportunity to demonstrate that he had accorded the sanction without application of mind and without having gone through the record of the case. In the given circumstances in my opinion it cannot be said that the prosecution has been able to prove that there had been sanction accorded by the Director, AIIMS for the prosecution of the accused Sh. S. D. Sharma by applying his mind to the facts and circumstances of the case.
C.C. No. 2/11 58 of 60 Allegation of Conspiracy
69. I would like to note there is no independent evidence led to prove the allegations of conspiracy besides allegations and the evidence referred above to establish the allegation of abuse of position by the public servants viz S/Sh. R L Prasad, Ramphal, S. S. Bhaduria and S. D. Sharma to benefit Sh. Rajiv Rastogi and to establish the allegations of Cheating against Sh. Rajiv Rastogi, the above discussion would show that prosecution has failed to prove the same. I according conclude that prosecution has also failed to prove that Accused had entered into a conspiracy to commit those offences. ORDER
70. In view of the forgoing discussion and the facts and circumstances of the case, I conclude that the prosecution has not been able to prove the offences punishable under section 120B read with Section 420 IPC read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 C.C. No. 2/11 59 of 60 against all the accused . The prosecution has also not been able to prove that Accused S/Sh. R. L. Prasad, Ramphal, S. S. Bhaduria and S. D. Sharma have committed offence under section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act. The prosecution has also not been able to prove that accused Rajiv Rastogi has committed offence under section 420 IPC, as charged.
71. In view of above, I am acquitting all the accused persons as charged. Their bail bonds are cancelled. Sureties are discharged. Their bail bonds furnished under section 437A Cr.P.C. will remain in force for a period of six months subject to any order which may be passed by the appellate Court in case of an appeal being preferred by CBI against the judgment of this Court.
File be consigned to Record room.
Announced in the Open Court ( L. K. GAUR )
on 12th of August, 2014 Special Judge (CBI)9
Central District, Delhi.
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