Central Administrative Tribunal - Delhi
Prakash Chandra vs Union Of India on 4 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2340/2010 New Delhi this the 4th day of May, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr.L.K.Joshi, Vice Chairman (A) Prakash Chandra, D1/A-122, Janakpuri, New Delhi-110058. Applicant (By Advocate Shri T.V.George with Shri Dushyant Kumar) VERSUS 1. Union of India Through Secretary, Ministry or Urban Development, Nirman Bhawan, New Delhi. 2. Director General (Works), CPWD Nirman Bhawan, New Delhi-110069 3. Union Public Service Commission, Through the Secretary, Dholpur House, Shahjahajan Road, New Delhi-110069 4. Central Vigilance Commission, Satarkata Bhavan, A-Block, GPO Complex, INA, New Delhi-110023 Respondents (By Advocate Shri Sameer Aggarwal) O R D E R Mr.L.K.Joshi, Vice Chairman (A):
Shri Prakash Chandra, retired Executive Engineer (Civil), Central Public Works Department (CPWD), the Applicant in this OA, is assailing the order dated 16.03.2010 passed by the President qua disciplinary authority, ordering thereby to withdraw on a permanent basis 10% of the monthly pension already sanctioned to him. He is also challenging the order dated 26.03.1998 whereby the sanction of the President was accorded for institution of departmental proceedings against him.
2. The Memorandum of Charge was communicated to the Applicant by order dated 26.03.1998 under Rule 9 of the CCS (Pension) Rules, 1972, by which the following four Articles of charge was communicated to him:
Shri Prakash Chandra, while functioning as Executive Engineer PWD Division No. V from 1.6.92 to 1.6.95 dealt with execution of various works connected with the Assembly Election of Delhi as per details shown in the Statement A. Sh. Prakash Chandra committed the following irregularities while preparing estimates, placing work orders and making payments for these works:-
ARTICLE-1 Sh. Prakash Chandra initially prepared the preliminary estimates and work orders for the various works listed in the Statement A. with exorbitantly high rates and inflated quantities. Thereafter as per the directions of Superintending Engineer, PWD Circle VI the quantities and rates were reduced by him and resubmitted the modified schedule of quantities to the Superintending Engineer, PWD Circle VI, for approval but Sh. Prakash Chandra failed to correct the quantities, rates and amounts in the detailed estimates for the various works while according technical sanctions.
ARTICLE-2 Shri Prakash Chandra, before placing the work orders failed to correct the quantities, rates and amounts of the various items of the work orders listed in the Statement A.
ARTICLE-3 Shri Prakash Chandra, Executive Engineer, passed and paid the final bills against various work orders without ensuring correctness in the quantities and rates as modified by him and approved by the SE, PWD Circle VI and without carrying out any test check of the measurements.
ARTICLE-4 Shri Prakash Chandra did not take any action to modify/revise the preliminary estimates sent by him to the Chief Electoral Officer for accord of administrative approval and expenditure sanction even after submitting the proposals to the Superintending Engineer, PWDX-VI for approval of work orders with reduced quantities and lesser rates than those adopted in the preliminary estimates.
Thus, the said Shri Prakash Chandra, by his above acts of omission and commission failed to maintain absolute integrity and exhibited lack of devotion to duty thereby contravening Rules 3(1)(i) & 3 (1) (ii) of the CCS (Conduct) Rues, 1964. The inquiry authority gave his report on 08.09.2005 and gave the following findings:
From the analysis and assessment of evidence set forth above, the findings in respect of Charges against Shri Prakash Chandra, Executive Engineer (Civil) (Retd.) CPWD are as follows:
Article-1 Proved partly Article-2 Giving CO benefit of doubt, it is held that the charge is not proved.
Article-3 Giving CO benefit of doubt, it is held that the charge of not ensuring correctness in quantities and rates in Final Bills is not proved. The charge of not carrying out test check of measurements is proved partly.
Article-4 Proved partly. The disciplinary authority, however, disagreed with the report of the inquiry authority and issued a Memorandum of disagreement on 26.03.2008 holding Article I to be partly proved, Article II to be fully proved and Article III to be fully proved. The Applicant filed a representation against the report of the inquiry authority and the note of disagreement of the disciplinary authority. After obtaining the advice of the Union Public Service Commission (UPSC) the President imposed the punishment of withdrawal of 10% of pension already sanctioned to him.
3. The Applicant had retired on superannuation from service on 31.01.1996. The work in question was taken up in October 1993 in connection with the elections of the Delhi Legislative Assembly in November 1993. The learned counsel for the Applicant would contend that the work had to be completed urgently as it related to elections. Insofar as the estimates of works were concerned, these had to be prepared in the Sub-Divisional office and after that these were checked up by the Assistant Surveyor of Works (ASW). Thereafter, these had to be submitted to the Executive Engineer. The learned counsel would contend that the Applicant had referred the matter to the Superintending Engineer in the Circle Office, as the estimates were not within his competence to sanction. It was further contended that the Assistant Engineer was competent to collect spot quotations because of the nature of work. Moreover, due to the Assembly elections in Delhi, the materials like G I sheets and wooden ballies were in great demand as these are needed for polling booths and counting centres. Because of heavy demand the prices of such items had gone up and the prices came down after the elections were over. One of the returning officers, Ms. Asha Nayar, had requested the Divisional Office for making necessary arrangements at the counting centre only on 28.10.1993 and the elections were to take place on 06.11.1993. In view of such a short time available for such an important work, it was not possible to complete all the formalities prescribed in the code. The learned counsel would point to the following observations of the inquiry authority in regard to Article I of the charge:
It is seen from Exhibits 13-A and 13-B that Technical Sanctions are dated 30.3.94. It is seen that that approval of SE to Work Orders was accorded on 29.3.94 and 30.3.94 on the basis of revised justification submitted by CO on 24.3.94. Normally Technical Sanction is accorded even before invitation of tenders. But this was not a normal situation since works had already been completed. Apparently CO was waiting for approval of competent authority to Work Orders before accord of Technical Sanction. It is considered that had the approval of competent authority been accorded earlier, there would have been a better chance of making corrections in quantities, rates and amounts of various items before accord of Technical sanction. However, instead of waiting for approval to according Technical Sanction, when time was still available to make corrections, i.e. on the basis of quantities and rates in his U.O. dated 24.3.94. As such, it is held that the charge against CO is proved partly. It was contended that after noting that the approval of the competent authority was received late, the inquiry authority was not justified in holding that the said Article of charge was partly proved. It was further argued that the UPSC had also accepted the contentions of the charged officer while commenting on the first Article of Charge. The observations of the UPSC have been quoted below:
The Commission observe that from the deposition of PW-2 who worked as SE (P&A) NDZ III, CPWD, Delhi it is observed that the work completed in November, 1993 as Assembly Elections in Delhi took place on 6.11.2003 and CO submitted Work Order for approval of SE on 1.12.93 after completion of work. The point raised by CO is that delay in finalization of work orders was because the Circle Office did not respond in time and this is absolutely clear from Ex.P-4. CO seems to be right while raising this point as to why Circle Office has not been questioned about delaying their response from December to March. CO submitted revised justification on 24.3.94 and Work Order was approved on 29.3.1994 is also supported by documentary evidence.
4.1.1. The Commission also observe that a perusal of COs letter dated 1.12.93 shows that while forwarding the eight work orders on 1.12.93 CO had mentioned that the crucial demand of such materials being all over Delhi, the suppliers had raised their hires of both the materials at random, and this situation may be examined during the negotiation and Work Order may be approved at the earliest. The CO wrote to SE,PWD, Circle-VI that the work was of most urgent nature and the contractors were asked to go ahead with the work in anticipation of approval and AEs were authorized to collect the spot quotation from the suppliers who could supply the required quantities of GI sheets as well as wooden ballies. PW-3, who worked as SE ) and as Project Manager GTB Medical College & Hospital Project PW Zone II who investigated the reasonability and correctness of the estimates prepared by CO, deposed during DE that majority of election related such works were done by one contractor Lalu Prasad Jain and similar work was done by EE (PW) DIV 22 and the rates adopted by PW-3 taily well with that rates. However, CO alleged that work was done by other Divisions at the rates as shown in estimates prepared by CO. As neither CO nor PO has submitted rates adopted by other Divisions for the similar kind of work it cannot be accepted as correct or incorrect. PW-3 has deposed that the estimate prepared by CO as Rs.39,48,650/- was modified to Rs. 33,18,093/- while PW-3 after investigation modified it to Rs.14,69,539/-. In the absence of adequate documentary proof it cannot be said that estimates were inflated by adopting higher rates by the CO. However, as observed by DA and deposed by PW-3, it is seen that while working out the estimated cost, cost indices adopted varied from 92% to 152% over DSR 1989 against the official allotment percentage of 89 as published by competent authority. On this basis, it can be inferred that the estimates prepared by the CO were inflated.
4.1.2. It is, however, observed that delay in finalization of estimates was not on account of COs delayed submission of work but mainly due to late response of Circle Office. Because of delay in response of Circle Office, CO was not in a position to modify the estimate as financial year was coming to close on 31.3.94 and payments to contractor had to be made before 31.3.94 s the work had already been executed in November, 1993. (emphasis added) It was further contended that the UPSC observed in paragraph 4.1.4 that the presenting officer failed to rebut the arguments of the charged officer by not producing certain documents. The learned counsel would contend that in spite of these observations, the UPSC was not justified in holding that the charge was partly proved. It was further argued that the inquiry authority held the second charge to be not proved by observing that approval from the competent authority was received on 29.03.1994 and 30.03.1994 and that left no time for the charged officer to make corrections or prepare fresh work orders because funds were to be debited by 31.03.1994, the closing day of the financial year, because these would lapse at the end of that day. The inquiry authority has also noted that the action of the charged officer to restrict the payment according to the orders of the competent authority should be considered quite adequate. It was pointed out that the UPSC agreed with the conclusion of the inquiry authority and did not agree with the note of disagreement of the disciplinary authority as would be clear from its observations quoted below:
4.2.2. The justification of DA for holding the charge proved is that while communicating his approval on 29.3.94 and 30.3.94, the SE directed that EE is authorized to issue Work Orders after getting the correct quantities (as indicated above) incorporated in the work orders and restricting the overall amount and the quantities. Thus, CO was duty bound to issue Work Orders strictly in terms of the directions of these after making the corrections. If anything was found missing in the approval conveyed by the SE, it required clarification rather than issuing a directive Work Order. Merely restricting the amount of work orders without making correctness in the quantities and rates of the item was as good or bad as making no corrections. The approval conveyed by the SE might have been flawed but, had the CO followed it in toto then there was no charge against him.
4.2.3. The Commission observe that the fact is that after communication of the approval by the SE on 29.3.94 and 30.3.94, not much time was left for CO to correct the work orders as the expenditure was to be debited in the year 1993-94 i.e. upto 31.3.94. Safeguarding the interests of the Government by issuing a proper work order after correcting the quantities, rates and amount was important but as appreciated by IO in the given circumstances of paucity of time the charge can be proved only partly. The UPSC was, therefore, not justified in holding that the charge was only partly proved, contended the learned counsel. As regards the third Article of Charge, the inquiry authority had again shown equivocation after concluding that in view of the limited time left, it was not possible to comply with the directions of the Superintending Engineer, he held that the charge stood partly proved. The UPSC has also agreed with the inquiry authority and disagreed with the disciplinary authority about this charge, as would be apparent from a reading of the following observations:
4.3.1 The Commission note that the IO has held Article-III as partly proved observing that test check of items of fixing, which cover a limited amount, could have been carried out when the works were still standing, but that only a limited time slot was available for this purpose. The DA has, however, observed that the corrections in the quantities and rates were not ensured by the CO while drawing the work orders but he only restricted the over all amount of the same. This led to percolation of the same discrepancies in the bill as well. Merely restricting the amount of the bills without making corrections in the quantities and rates of the item was as good or bad as making no corrections. As discussed under Article-II in view of paucity of time CO cannot be held guilty of this charge. Regarding the charge that the CO did not carry out test check of the measurements recorded by his subordinates, before passing the bills, the DA has observed that test check was obviously required to be done when the barricading was in place. Finding of the IO that test check of items of fixing, which cover a limited amount could have been carried out is not well founded because if fixing could have been test checked, then the area of CGI sheets and number of ballies in position could have also been test checked for that particular day. The work was not yet awarded and the measurement recorded by the subordinates was going to form the basis of the estimates and subsequently for payment as well. CO has alleged that restriction imposed by SE for restricting the quantities and rates were just to harass him at the instance of CE who wanted to make grounds for making the transfer of CO. He has also deposed that he modified quantities and rates under pressure of SE. PO had referred to Exhibit P-17 and inferred that PDs do not reveal any test check done by CO as is statutorily required before passing bill in accordance with para 7.19 of CPWD Manual Vol. II. The Commission observe that during general examination by IO, CO stated that test check could not be done due to situation and circumstances but he was satisfied with overall correctness of the execution. It seems reasonable as observed by IO that the nature of work was such i.e. most of amount spent was on account of hire charges by way of square metre days or number of day of hiring as the test check of these items was difficult in the strict sense of the term which required physical check at site but the appropriate action due on part of CO would have been to at least test check the fixing etc. on the day of election himself to ensure that no complication and confusion may arise later on by contractors or his rival officers. The Commission, therefore, conclude that the charge against the CO has proved only partly to this extent. As regards the fourth charge, the inquiry authority had agreed with the Applicant that the ASW branch share responsibility in this matter as it should have taken steps to revive the preliminary estimate sent by the Divisional Office to the Chief Electoral Officer for record of administrative approval. However, the inquiry authority had further reasoned that the charged officer, the Applicant, should also have taken action to revise the preliminary estimate sent to the concerned authority. The UPSC has agreed with the conclusion of the inquiry authority. In its summing up the UPSC has come to the conclusion that the charged officer should be given benefit of doubt in the case. The observations in the paragraph 4.4.2 have been extracted below:
The Commission further observe that the charge mainly relate to non-compliance of standardized CPWD Code contained it. (CPWD MANUAL) in estimation, execution, test checks and checking the veracity for payments after execution. Thus, errors in final bills had resulted in arbitration in settling claims. This is a grave misconduct on the part of CO. However, since the charges are partly proved to the extent that there had been inordinate delays in communicating approvals by higher authorities, resulting in settling claims, in expectation of approvals, the CO may be given the benefit of doubt, as explained in preceding paragraphs. The learned counsel for the Applicant would contend that the UPSC has taken contradictory stand by, on the one hand, giving the benefit of doubt to the charged officer and on the other recommending withdrawal of 10% of pension already sanctioned.
4. The learned counsel would also contend that before instituting the departmental proceedings after retirement under Rule 9 of the CCS (Pension) Rules, 1972 the President has to come to the conclusion that the employee is guilty of grave misconduct. There is no mention in the Memorandum of Charge or the approval of the President for initiating departmental proceedings that the President has come to the conclusion that the Applicant is guilty of grave misconduct. He would further contend that in the light of the report of inquiry authority and the advice of the Union Public Service Commission, it could not be said that there was any misconduct on the part of the Applicant, to say nothing of grave misconduct. The inquiry authority and the UPSC have agreed that because of urgency in implementing the works and the likelihood of the prices of the items like G I Sheets and ballies being high because of the elections, the delay in according approval by the competent authority and the Applicant's inability to make the correction in the work order before the end of the financial year on 31.03.1994, the Applicant could not be held blameworthy for the charges levelled against him. There is no wilful disregard of rules and codes by the Applicant. In such circumstances the observation of the UPSC that the charges constitute grave misconduct is absolutely arbitrary.
5. The learned counsel for the Respondents would only contend that it was not correct to say that the inquiry authority and the UPSC have exonerated the Applicant completely. He would contend that both the inquiry authority and the UPSC have found the Applicant to be guilty of misdemeanour. The error on the part of the Applicant in not complying with the CPWD code has resulted in arbitrator awarding the claim to the contractor. He would contend that the satisfaction of the President that it constituted grave misconduct cannot be adjudicated in any proceedings before the Tribunal.
6. We have given our utmost consideration to the rival contentions and have carefully perused the record placed before us.
7. A careful perusal of the report of inquiry authority and the advice of the UPSC would lead to an inevitable conclusion that there have been several mitigating circumstances, which have been pointed out by the UPSC and inquiry authority themselves, which would completely water-down the charges against the Applicant. There is an agreement about the fact that there was a great deal of urgency about completing the work in a very short period. It has also been accepted that the prices of the items used in the works would go up during the period of elections because of increased demand for those items. It has also been observed that the prosecution has failed to show that other divisions carried out the work at lesser cost. The fact that the Circle Office was responsible for delaying the sanction for the works has also been accepted. The inability of the charged officer to make corrections because of receiving the sanction only on 30.03.1994, only one day before the close of the financial year has also been accepted. There is also an acceptance of the fact that the correction in the estimates to be sent to the Chief Electoral Officer was the responsibility of the ASW branch. The only leitmotif of the inquiry authority and the UPSC is that in spite of all these mitigating factors the Applicant should also have done something to comply with the directions of the Circle Office. We are of the considered opinion that on the perusal of the above mentioned report of inquiry authority and the advice of UPSC, not even a charge of misconduct can be sustained against the Applicant. It is now well settled that misconduct involves wilful disregard of procedures and codes and that there is an element of mischief in that. At the most, it could be said against the Applicant that he was negligent in not personally considering the revised estimates being sent to the Chief Electoral Officer. But mere negligence cannot be called misconduct (See Union of India and others Vs. J.Ahmed, AIR 1979 SC 1022). In view of this the advice of the UPSC is flawed inasmuch as, after considering all the mitigating circumstances in favour of the Applicant, it held without any rhyme or reason that the Applicant was guilty of grave misconduct. The President has also not considered any of the points raised in the representation of the Applicant against the note of disagreement communicated to him along with the report of the inquiry authority. The order is non-speaking and cannot be sustained.
8. On the basis of the above consideration the OA is allowed and the impugned order of punishment is quashed and set aside. The Respondents are directed to reimburse to the Applicant the amount of pension which has been withheld and pay the arrears within one month of the receipt of a certified copy of this order with a simple interest of 6% on the arrears. The Applicant would be restored the pension, which was originally sanctioned to him. No costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk