Madras High Court
Dr.I.Vijayakumar vs The Chairman on 2 November, 2021
Author: R.Hemalatha
Bench: V.M.Velumani, R.Hemalatha
W.P.Nos.3454, 18422, 19083 & 19128 of 2022
and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 19.01.2023
DELIVERED ON : 30.01.2023
CORAM
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
W.P.Nos.3454, 18422, 19083 & 19128 of 2022
and
W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022
Dr.I.Vijayakumar, I.R.S. (Retired) ... Petitioner in all WPs
Vs.
1.The Chairman,
Central Board of Direct Taxes,
Department of Revenue,
Ministry of Finance,
Government of India,
New Delhi.
2.The Secretary to the Government of India,
Ministry of Finance,
Department of Revenue,
New Delhi - 110 001.
3.The Secretary to the Government of India,
Department of Fertilizers,
Ministry of Chemical and Fertilizers,
Page 1 of 43
https://www.mhc.tn.gov.in/judis
W.P.Nos.3454, 18422, 19083 & 19128 of 2022
and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022
Shastri Bhavan, New Delhi - 110 001.
4.The Principal Director General of Income Tax (Vigilance),
Dyal Singh Public Library Building,
No.1, Deen Dyal Upadhyay Marg,
New Delhi.
5.The Joint Secretary and Chief Vigilance Officer,
Department of Fertilizers,
Ministry of Chemical and Fertilizers,
Shastri Bhavan, New Delhi - 110 001.
6.The Registrar,
Central Administrative Tribunal,
Madras Bench, Chennai - 600 104. ... Respondents in WPs
COMMON PRAYER : Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus
to call for the records of in respect of the order of the 6th respondent, the
Hon'ble Tribunal, made in O.A.Nos.310/00451/2020, 310/00450/2020,
310/00449/2020 & 310/00448/2020 dated 02.11.2021 and quash the
same and direct the 1st respondent to drop all the charges in pursuant to
the charge memo dated 27.02.2018, 29.06.2018, 14.08.2019 &
03.11.2017 already issued.
In all WPs:
For Petitioner : Mr.R.Ramachandran
For R1 to R5 : Mr.V.Vijayashankar, Senior Counsel
R6 : Tribunal
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W.P.Nos.3454, 18422, 19083 & 19128 of 2022
and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022
COMMON ORDER
( R.HEMALATHA, J.) These petitions in that order are filed by the unsuccessful petitioner in Central Administrative Tribunal, Chennai in O.As.451, 450, 449 & 448 of 2020 respectively, challenging all the orders of the Tribunal dated 02.11.2021.
2.Briefly into the facts of the case :
The petitioner is a retired IRS officer who joined in the Income Tax Department in 1984 and much later was deputed to M/s.Madras Fertilizers Limited as Chairman cum Managing Director from 11.05.2012. He superannuated on 31.10.2015 and subsequently, on
03.11.2017, 27.02.2018, 29.06.2018 & 14.08.2019 four charge memos were issued to him by the office of the first respondent. There were many charges against him and he was not allegedly provided with the copies of documents relied upon by the respondents as listed out in the annexures Page 3 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 to the charge memos. The petitioner had objected to the charge memos which were issued to him after a lapse of three years post-retirement and stated that such issuance required the sanction of the President which was not obtained. His further grievance was that the first stage advice from Central Vigilance Commission (CVC) was obtained without seeking any explanation from him and that the time schedule presented for such disciplinary proceedings was not adhered to and also that the lending department cannot initiate disciplinary action for any acts of his in the borrowing department and therefore, the entire proceedings became vitiated and initiated with ulterior motive. Hence, the charge memos were liable to be quashed. He approached the Central Administrative Tribunal, Chennai in four O.As.451, 450, 449 & 448 of 2020. All the OAs were dismissed by the Central Administrative Tribunal, Chennai, vide separate order dated 02.11.2021 and hence these Writ Petitions.
3.The Central Administrative Tribunal, Chennai vide four separate orders (since the prayers were different though the subject was Page 4 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 common), disposed all the four OAs with directions to the respondents to decide the charge memos expeditiously in accordance with law on its own merits. However, the following paragraph found common in all the four OAs drives home the point the Central Administrative Tribunal, Chennai wanted to convey.
"Now, testing the facts of the instant O.A., on the touchstone of above discussions, we find that there is no such allegation that charge memo has not been issued by an officer incompetent to do so or the matter of disciplinary proceedings is fairly old or any other ground legally available for quashing of charge memo. Therefore, the prayer for quashing charge memo is refused"
The aggrieved petitioner in all these four writ petitions has raised the same grounds as raised in the O.As.
4.Before going into the arguments on both the sides and discussions on the same, let us go through the charges contained in the four charge memos :
Page 5 of 43https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 In W.P.No.18422 of 2022 :
ANNEXURE -I Articles of Charge Name of the CO :- Sh.I.VIJAYAKUMAR, EX-CMD, MFL Subject :- Procurement of Phosphoric Acid during 2014-15
a) Tender No. MFL/M & D/IMP/Phosphoric Acid/2014-15/002 dated 26.05.2014 .
1. Dr.I.Vijayakumar, as then CMD, MFL has approved the proposal dated 02.07.2014 to award contract for Tender No.MFL/M&D/IMP/Phosphoric Acid/2014-15/2002 dated 26.04.2014 for procurement of phosphoric acid @ US $ 825/MT to M/s.Sesa Sterlite based on e-mailed bid of M/s.Sesa Sterlite which had been received after the closing time of receiving the offers. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Ruled 3(1)(i) 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
2. Dr.I.Vijayakumar, then CMD, MFL had approved the proposal dated 02.07.2014 to award contract for Tender No.MFL/M&D/IMP/Phosphoric Acid/2014-15/002 dated 26.04.2014 for procurement of phosphoric acid @ US $ 825/MT to M/s.Seas Sterlite based on bid may have been decided after knowing that no other offers have been received at tender closing time of 16:00 hours. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1) (iii) of CCS (Conduct Rules).
3. Dr.I.Vijayakumar, then CMD, MFL has approved this tender for a price of Phosphoric acid of 52% P2O5 @ US $ 825/MT as against prevailing market rate of the FMD price @ US $ 750.75/MT which resulted in additional expenditure of Rs.70 lakhs. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
4. Dr.I.Vijayakumar, then CMD, MFL did not taken the approval of the Board of MFL before entering into contract with M/s.Sesa Sterlite. Thus, Dr.I.Vijayakumar, Page 6 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 then CMD, MFL has violated Rule 3(1)(i) 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
b) Tender No. MFL/M&D/IMP/Phosphoric Acid/2014-15/006 dated 14.07.2014.
1. Dr.I.Vijayakumar, as then CMD, MFL has approved the Tender Committee Recommendation dated 12.09.2014 to award contract for Tender No.MFL/M&D/IMP/Phosphoric Acid/2014- 15/006 dated 14.07.2014 worth Rs.20.83 Crores for procurement of phosphoric acid @ US $ 855/MT to M/s.Sesa Sterlite based on e-mailed bid of M/s.Sesa Sterlite which had been received after the closing time of receiving the offers. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
2. Dr.I.Vijayakumar, as then CMD, MFL has approved the proposal dated 02.07.2014 to award contract for Tender No.MFL/M&D/IMP/Phosphoric Acid/2014-15/006 dated 14.07.2014 for procurement of phosphoric acid @ US $ 855/MT to M/s.Sesa Sterlite based on bid of M/s.Sesa Sterlite keepoing in view of the fact that the rate quoted in this emailed bid may have been decided after knowing that no other offers have been received at tender closing time of 14.00 hours. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
3. Dr.I.Vijayakumar, then CMD, MFL has approved this Tender for a price of Phosphoric acid of 52-54% P2O5 @ US $ 855/MT as against expenditure of Rs.36 lakhs. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
4. Dr.I.Vijayakumar, then CMD, MFL did not taken the approval of the Board of MFL before entering into contract with M/s.Sesa Sterlite. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
c) Tender No.MFL/M&D/COM/PA/2014-15/008 dated 20.11.2014
1. Dr.I.Vijayakumar, then CMD, MFL has accorded his approval to the proposal dated 08.12.2014 to include M/s.Aries Fertilizers Group Pvt Ltd Singapore as a pre-qualified Page 7 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 vendor for Phosphoric Acid when the tender had already been floated on 20.11.2014 to the PQ vendors. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
2. Dr.I.Vijayakumar, then CMD, MFL has not taken the approval while sending the tender enquiry to M/s.Aries Fertilizers Group Pvt Ltd Singapore, which was in violation of Clause 4.0 of the Manual of Import of Fertilizers and Raw Materials. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
3. Dr.I.Vijayakumar, then CMD, MFL has approved this tender for a price of Phosphoric Acid of 52-54% P2O5 @ US $ 867.50/MT as against prevailing market rate of the FMB price @ US $ 765/MT which resulted in additional expenditure of Rs.3.73 Crores. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
4. Dr.I.Vijayakumar, then CMD, MFL did not taken the approval of the Board of MFL before entering into contract with M/s.Aries Fertilizers Group Pvt Ltd, Singapore. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
d) Tender No.MFL/M&D/COM/PA/2014-15/008 dated 11.03.2015
1. Dr.I.Vijayakumar, then CMD, MFL has approved this tender for a price of Phosphoric Acid of 49-51.9% P2O5 @ US $ 878.50/MT as against prevailing market rate of the FMB price @ US $ 805/MT which resulted in additional expenditure of Rs.1.94 Crores. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct Rules).
Annexure -II Statement of Imputation on the articles of charge framed against Shri.I.Vijayakumar, Ex-CMD in respect of Procurement of Phosphoric Acid during 2014-15 & 2015-16 Page 8 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022
a)Tender No.MFL/M&D/IMP/Phosphoric Acid/2014-15/002 dt 26.05
1. The email offer for this tender was received on 10.06.2014 at 16:18 hrs i.e., after the closing time of 16:00 hours on 10.06.2014. As per the manual for imports of Fertilizer and Raw Material, this offer cannot be considered as delayed bid since the definition of delayed bid is stated as follows :
"Bids posted well before the opening date but received after opening, due to delay in transit shall be termed as delayed bids and may be rejected on merit, by the SPC".
It is evident that this bid was received before opening and there is no delay in transit. Even if the bid can be construed as delayed bid, this requires approval of Special Purchase Committee (SPC). In this case this was not taken. The TOC has not followed the guidelines prescribed in this regard. Not following the guidelines is a serious irregularity. Dr.I.Vijayakumar, had ignored the same while approving the TCR. There were chances that the vendor may have sent the e-mail offer after knowing the fact that no other quotation had been received by the closing time and date. This is a serious irreguarity in finalising of TCRs.
2. Dr.I.Vijayakumar, as CMD, ignored the fact that the rate quoted in this email bid may have been decided after knowing that no other offers have been received at tender closing time of 16:00 hours. A serious procedural lapse has occurred by opening and processing a bid which is a late bid i.e., bid has been received after the closing time. As the bid was received after the closing time, the same should not have been considered for evaluation, to maintain the long term discipline and sancity in tendering system. This sacrosanct and fundamental rule should have been scrupulously followed, duly re-floating the tender. This lapse has beenoverlooked by Dr.I.Vijayakumar, who approved the proposal.
Page 9 of 43https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022
3. Dr.I.Vijayakumar, as CMD, has approved this tender proposal for a price of Phosphoric Acid of 52% P2O5 @ US $ 825/MT as against prevailing market rate of the FMB price @ US $ 750.75/MT which resulted in additional expenditure of at least around Rs.70 lakhs. It is noteworthy that FACT has been able to procure at FMB rates, during the same period, though they do not have long term arrangements as confirmed by them vide email letter dated 13.04.2018. Hence, it is obvious that notwithstanding all the constraints stated, it is still not impossible to procure at FMB prices even in Spot Purchase Scenario as evidenced by the procurement of FACT. Hence, as additional expenditure of at least around Rs.70 lakhs has been incurred.
4. As per Delegation of authority, the Board's approval is required for tender of this value. However, Dr.I.Vijayakumar had failed to obtain approval of competent authority. Even post facto approval has not been obtained as on date. Only information has been given to Board during the 275th Meeting held on 29.09.2014.
b)Tender No.MFL/M&D/IMP/Phosphoric Acid/2014-15/006 dt 16.07.2014
1. The email offer for this tender was received on 24.07.2014 at 14:04 hrs i.e., after the closing time of 14:00 hours on 24.07.2014. As per the manual for imports of Fertilizer and Raw Materials, this offer cannot be considered as delayed bid since the definition of delayed bid is stated as follows :
"Bids posted well before the opening date but received after opening, due to delay in transit shall be termed as delayed bids and may be rejected on merit, by the SPC".
It is evident that this bid was received before opening and there is no delay in transit. Even if the bid can be construed as delayed bid, this requires approval of Special Purchase Committee (SPC). In this case this was not taken. The TOC has not followed the guidelines prescribed in this regard. Not following the guidelines is a serious irregularity. Dr.I.Vijayakumar, had ignored the same while approving the TCR. There were chances that the vendor may have sent the e-mail offer after knowing the fact that no other quotation had been received by the Page 10 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 closing time and date. This is a serious irreguarity in finalising of TCRs.
2. Dr.I.Vijayakumar, as CMD, ignored the fact that the rate quoted in this email bid may have been decided after knowing that no other offers have been received at tender closing time of 14:00 hours. A serious procedural lapse has occurred by opening and processing a bid which is a late bid i.e., bid has been received after the closing time. As the bid was received after the closing time, the same should not have been considered for evaluation, to maintain the long term discipline and sancity in tendering system. This sacrosanct and fundamental rule should have been scrupulously followed, duly re-floating the tender. This lapse has beenoverlooked by Dr.I.Vijayakumar, who approved the proposal.
3. Dr.I.Vijayakumar, has approved this tender for a price of Phosphoric Acid of 52-54% P2O5 @ US $ 855/MT as against prevailing market rate of the FMB price @ US $ 803/MT, which resulted in additional expenditure of R.36 lakhs to MFL. It is noteworthy that FACT has been able to procure at FMB rates, during the same period, though they do not have long term arrangements as confirmed by them vide email letter dated 13.04.2018. Hence, it is obvious that notwithstanding all the constraints stated, it is still not impossible to procure at FMB prices even in Spot Purchase Scenario as evidenced by the procurement of FACT. Hence, it proves that MFL was incurred an additional expenditure of Rs.36 lakhs.
4. As per Delegation of authority, the Board's approval is required for tender of this value. However, Dr.I.Vijayakumar failed to obtain approval of competent authority. Even post facto approval has not been obtained as on date.
c)Tender No.MFL/M&D/COM/PA/2014-15/008 dt 20.11.2014
1. As against the 18 PQ vendors on date, enquiries were sent to all. The extended closing date & time for submission of bids of the tender was 15.12.2014 @ 16.00 Hrs. In the meantime, SPC Members put up a proposal on 08.12.2014 to include M/s.Aries Fertilizers Group Pvt. Ltd., Singapore as a pre-qualified vendor for Phosphoric Acid per Clause 11 of NIT. The same was approved by the Dr.I.Vijayakumar. As per the Manual for Import of Fertilizers & Raw Page 11 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 Materials, the Clause 4.0 specifies that the Pre- qualification of vendors shall be approved by the Board of Directors. The inclusion of M/s.Aries was done and enquiry was sent on 11.12.2014. However, Board approval was obtained to include this vendor in the pre-qualified list for Phosphoric Acid, only in February 2015 (277th Board Meeting). At the time of inclusion and sending enquiry, the Firm was not approved by Competent Authority (MFL Board). Incidentally, the same vendor happened to respond and was ultimately awarded the contract without proper authority (sanction of competent authority viz., MFL Board is required to include any vendor in PQ list). This is a serious procedural lapse.
2. Dr.I.Vijayakumar, has approved this tender for a price of Phosphoric Acid of 52-54% P2O5 @ US $ 867.50/MT as against prevailing market rate of the FMB price @ US $ 765/MT, which resulted in additional expenditure of R.3.73 Crores to MFL. It is noteworthy that FACT has been able to procure at FMB rates, during the same period, though they do not have long term arrangements as confirmed by them vide email letter dated 13.04.2018. Hence, it is obvious that notwithstanding all the constraints stated, it is still not impossible to procure at FMB prices even in Spot Purchase Scenario as evidenced by the procurement of FACT. Hence, it proves that MFL was incurred an additional expenditure of Rs.3.73 Crores.
3. As per Delegation of authority, the Board's approval is required for tender of this value. However, Dr.I.Vijayakumar failed to obtain approval of competent authority. Even post facto approval has not been obtained as on date.
d)Tender No.MFL/M&D/COM/PA/2014-15/008 dt 11.03.2015
1. Dr.I.Vijayakumar, has approved this tender for a price of Phosphoric Acid of 49-51.9% P2O5 @ US $ 878.50/MT as against prevailing market rate of the FMB price @ US $ 805/MT. It is noteworthy that FACT has been able to procure at FMB rates, during the same period, though they do not have long term arrangements as confirmed by them vide email letter dated 13.04.2018. Hence, it is obvious that notwithstanding all the constraints stated, it is still not impossible to procure at FMB prices even in Page 12 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 Spot Purchase Scenario as evidenced by the procurement of FACT. Hence, it proves that MFL was incurred an additional expenditure of Rs.1.94 Crores has been incurred, when compared with FMB price.
In W.P.No.3454 of 2022 :
ANNEXURE -I Article 1:
While, approving the note dated 28.02.2014 for appointment of Sh.Rajat Sharma as Liaison Officer for Delhi Office based on MFL's Recruitment Polict for appointment on Contract under Clause 6.0.0 as per which only persons having specialized knowledge and demonstrated abilities can be appointed on approved vacancy, Dr.I.Vijayakumar has failed to ensure the appointment of person of specialized knowledge and demonstrated abilities as Sh.Rajat Sharma was only a Graduate and thus, Dr.I.Vijayakumar has violated 3(1)(i), 3(i)(ii), 3(1)(iii) & 3(2)(i) of CCS (Conduct) Rules.
Article 2:
The proposal dated 28.02.2014 which had been approved by Dr.I.Vijayakumar, Ex-CMD, MFL did not contain the details in r/o Sh.Rajat Sharma viz., application received, qualifications, experience etc. Thus, Dr.I.Vijayakumar has violated 3(1)(i), 3(i)(ii), 3(1)(iii) & 3(2)(i) of CCS (Conduct) Rules.
Articles 3:
Dr.I.Vijayakumar, Ex-CMD, MFL had approved the note dated 28.02.2014 for appointment of Sh.Rajat Sharma as Liaison Officer for Delhi Office for consolidated monthly payment of Rs.30,000/- per month, conveyance expenses of Rs.5000/- per month, mobile expenses at actual wihout limit, without any justification, Dr.I.Vijayakumar has thus violated 3(1)(i), 3(i)(ii), 3(1)(iii) & 3(2)(i) of CCS (Conduct) Rules.
Dr.I.Vijayakumar, Ex-CMD, MFL had approved the note dated 28.02.2014 for appointment of Sh.Rajat Sharma as Liaison Officer for Delhi Office for consolidated monthly payment of Rs.30,000/- per month, conveyance expenses of Rs.5,000/- per month, mobile expenses at actual without limit. While according his approval, Dr.I.Vijayakumar has totally neglected Clause 106 of MFL's Memorandum and Articles of Association as Page 13 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 per which the Board shall have the power to superinted, control and direct the functions of Managing Director and shall have the following powers to the exclusion of the Managing Director having sub-clause (xix) of Clause 106 "to create and make appointments to the posts on scales of pay the maximum of which exceeds Rs.3,500/-". Dr.I.Vijayakumar has thus violated 3(1)(i), 3(i)(ii), 3(1)(iii) & 3(2)(i) of CCS (Conduct) Rules.
Dr.I.Vijayakumar, Ex-CMD, MFL had approved the proposal dated 09.06.2014 for publishing the advertisement only in the classified Section of the Times of India (New Delhi Edition), to restrict the competition Severly. Dr.I.Vijayakumar has thus violated 3(1)(i), 3(i)(ii), 3(1)(iii) & 3(2)(i) of CCS (Conduct) Rules.
Dr.I.Vijayakumar, Ex-CMD, MFL had approved the recruitment of Sh.Rajat Sharma, for the post of Liaison Representative, Grade IV despite the fact that Sh.Rajat Sharma did not possess the 3 years Post-Qualification Experience as required by the MFL Web Advertisement. Dr.I.Vijayakumar has thus violated 3(1)(i), 3(i)(ii), 3(1)(iii) & 3(2)(i) of CCS (Conduct) Rules.
Article 7:
Dr.I.Vijayakumar, Ex-CMD, MFL had approved the recruitment of Sh.Rajat Sharma, for the post of Liaison Representative, Grade IV despite the fact that degree obtained by Sh.Rajat Sharma from FILM University, Sikkim through Distance mode is invalid. EILM University has no mandate to conduct courses through Distance Mode. As such the degree certificate submitted by Sh.Rajat Sharma was invalid. Therefore, Dr.I.Vijayakumar has violated 3(1)(i), 3(i)(ii), 3(1)(iii) & 3(2)(i) of CCS (Conduct) Rules.
Annexure - II Statement of Imputations for Article of Charge 1 to 4 regarding Contract Appointment of Shri Rajat Sharma :
i. A Note dated 28.02.2014 floated by Dy. Manager (HR) stating that there is a need for appointing a Liaison Officer in New Delhi, and in the same note stated that one Shir Rajat Sharma, approached teh present Liaison Officer and requested for appointing him as a Liaison Page 14 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 Officer on contract basis. Under the Clause 6.0.0 of MFL Recruitment Policy, only persons gavubg specialised knowledge and demonstrated abilities can be appointed on approved vacancies. This proposal was forwarded by DGM-P & A, recommended by GM-P&A, concurred by GM-F&A and approved by CMD. This note lacked the basic details like the work requirements, profile of the intended post, the procedure for such appointment, advertising or public note for such a vacancy etc. ii.There are no documents produced to prove the educational qualification, experience etc., of Shri. Rajat Sharma. However, Dy Manager (HR) merely describes Shri.Rajat Sharma's qualification in his note. There was no mention of proposed contract employee's duties, working hours, responsibility etc. in the proposal. In the absence of above information, this has to be returned by approving authority seeking all information. Despite above lacunae, this proposal was approved by CMD.
iii.Without any sort of justification of the work involved or reference to rules, the proposed contract for a period of 11 months with a consolidated payment of Rs.30,000/- per month, conveyance expenses of Rs.5,000/- per month, mobile expenses at actual without limit and any other expenses were approved by CMD.
iv.The Clause 106 of MFL's Memorandum Is Articles of Association states that "to create and make appointments to Posts on scales of pay the maximum of which exceeds Rs.3,500/-" the powers vested with Board. In this case the proposal was approved by CMD without authority and Board approval was not obtained.
Thus it is evident from the above this was clearly a case of favouritism without adherence to rules.
Statement of Imputations for Article of Charge 5 regarding recruitment as Liaison Officer, E-1 Scale (Abandoned Attempt):
i. The advertisement for filling up of the post of Liaison Officer, E1 Grade, was made only in Delhi Edition of Times of India on 12.06.2014 in the classified pages, not in all editions of leading newspapers and vernacular newspapers. The advertisement in Times of India, New Delhi, does not mention any details of reservationor relaxation norms for SC/ST/OBC etc., as per GOI Page 15 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 guidelines. It is alleged that CMD and other officers of MFL grossly violated the clause 6.1.0 (Positioning of EO Scale will be through direct recruitment of candidates with Professional Qualification as Management / Graduate Engineer Trainees), 6.2.0 (Internal candidates with professional qualification (s) wil lbe permitted to compete with external candidates with age relaxation as per norms subject to fulfilling the other eligibility criteria prescribed for the same) and 11.10.0 (Vacancies generated at EI level would be filled up either through promotion from Grade V to E1 or by recruitment at EO by maintaining a ration of 60:40 for professional and non- professional) of Supervisory Promotion Policy and Clause 8.0 (60% of the vacancies by Direct Recruitment and remaining 40% by promotion from Gr.V position internally, the candidates must be professionally qualified) of Non-
Supervisory Promotion Policy of MFL in the recruitment process. MEL Management has not prepared any reservation roster as per GoI instructions for the recruitment.
ii.Senior most officers of the Company, including Dr.I.Vijayakumar, then CMD were in select Shri.Rajat Sharma at New Delhi itself. Hence, the recruitment process of Liaison Officer, E-1 Scale, was planned and executed in a secretive and surreptitious manner with a view to favour Shri.Rajat Sharma. However, owing to staff agitation, the recruitment process ended with the committee cancelling the process due to "inadequacy of candidate".
Statement of Imputations for Article of Charge 6 regarding recruitment as Liaison Representative Gr. IV :
i. Dr.I.Vijayakumar, then CMD initiated a note dated 07.10.2014 constituting a Selection Committee for selection of various posts, including "Liaison Representative", Gr.IV, downgrading this post from Liaison Officer, E1 Scale, without remarks. Minutes of the Selection Committee dated 24.12.2014 recommending selection of Shri Rajat Sharma, for the post of Liaison Representative, Gr.IV, was sent to Dr.I.Vijayakumar, then CMD for his approval. Despite Mr.Rajat Sharma not possessing 3 years Post Qualification Experience as stipulated in MFL Web Advertisement i.e., post qualification experience after December 2012 (completion of Degee), his candidature was considered and recommended Page 16 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 for appointment, after seeking legal opinion during which the above lacunae was not brought out to the Central Government Standing Counsel. This is obvious from the fact that there was not attempt for completing the selection of other Posts (including some Senior Management posts vbiz., General Manager) notified in the same advertisement, even as of today.
ii.The educational qualification produced by Mr.Rajat Sharma with three years degree certificate from EIILM University, Sikkim is not recognised by UGC. This University has not mandate to conduct degree courses through Distance Mode. This makes the Degree Certificate invalid.
Hence, it is evident from the above the entire process was engineered with the sole intention of recruiting Shri.Rajat Sharma In W.P.No.19083 of 2022 :
Annexure - I Articles of Charge Name of the CO :- Sh.I.VIJAYAKUMAR, EX-CMD, MFL Subject :- Recruitment of Plant Attendant Trainees - 2nd Batch
1. Dr.I.Vijayakumar, then CMD, MFL had approved the proposal dated 19.08.2015 for appointment of six senior most Janitorial Attendants and five senior most contract workmen working in Group Head Office as Plant Attendant Trainees and to conduct interview for the same while ignoring adherence to the Recruitment Policy of Company for direct recruitment (clause 4.1.1 - Mandatory notification to local employment exchange). Thus, Dr.I.Vijayakumar has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
2. Dr.I.Vijayakumar, then CMD, MFL while approving the proposal dated 19.08.2015 for appointment of six senior most Janitorial Attendants and five senior most contract workmen working in Group Head Office as Plant Attendant Trainees and to conduct interview for the same, despite Page 17 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 Company's Recruitment Policy Clause 4.6.1 wherein it is stated that "normally the number of candidates to be called for interview shall be in the ratio of 1:5". Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
3. Dr.I.Vijayakumar, then CMD, MFL while approving the proposal dated 19.08.2015 for appointment of six senior most Janitorial Attendants and five senior most contract workmen working in Group Head Office as Plant Attendant Trainees and to conduct interview for the same, thereby not following the proper roster details viz.
SC/ST/OBC/PH/Ex-Servicemen for recruitment purpose. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
4. Dr.I.Vijayakumar, then CMD, MFL while approving the proposal dated 19.08.2015 for appointment of six senior most Janitorial Attendants and five senior most contract workmen working in Group Head Office as Plant Attendant Trainees and to conduct interview for the same, did not provide equal opportunity to a large number of contract workmen working more than 15 years in MFL as Plant Attendant and naturally more suitable for the job. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
5. Dr.I.Vijayakumar, then CMD, MFL while approving the proposal dated 19.08.2015 which did not propose the uniform set of eligibility criteria in comparison with the first phase of recruitment as experience was reduced to 10 years for five candidates in the second batch and they were selected arbitrarily from other working locations viz. Group Head Office without giving equal opportunity to all contract employees working in Plant and other areas of MFL. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
6. Dr.I.Vijayakumar, then CMD, MFL approved the proposal dated 19.08.2015 wherein no legal and administrative clearance as mentioned in the CMD's bulletin dated 31.12.2013 were obtained. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) Page 18 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 of CCS (Conduct) Rules, 1964.
7. Dr.I.Vijayakumar, then CMD, MFL approved the proposal dated 19.08.2015 for appointment of six senior most Janitorial Attendants and five senior most contract workmen working in Group Head Office as Plant Attendant Trainees and to conduct interview for the same, despite the absence of 'manpower request' as laid down in P.02 of MFL, Recruitment Policy, and the proposal of recruitment was processed. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
8. Dr.I.Vijayakumar, then CMD, MFL approved the Selection Committee Meeting Minutes dated 04.09.2015 recommending selection of 11 candidates while ignoring adherence to the recruitment policy of company for direct recruitment (clause 4.1.1 - Mandatory notification to local employment exchange). Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
9. Dr.I.Vijayakumar, then CMD, MFL has approved the Selection Committee Meeting Minutes dated 04.09.2015 recommending selection of 11 candidates despite company's recruitment policy Clause 4.6.1 wherein "normally the number of candidates to be called for interview shall be in the ratio of 1:5". Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
10.Dr.I.Vijayakumar, then CMD, MFL has approved the Selection Committee Meeting Minutes dated 04.09.2015 recommending selection of 11 candidates and not following the proper roster details viz., SC/ST/OBC/PH/Ex- servicemen for recruitment purpose. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
11.Dr.I.Vijayakumar, then CMD, MFL has approved the Selection Committee Meeting Minutes dated 04.09.2015 recommending selection of 11 candidates and not providing equal opportunity to a large number of contract workmen working more than 15 years in MFL Plant Attendant and naturally more suitable for the job. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules Page 19 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
12.Dr.I.Vijayakumar, then CMD, MFL has approved the Selection Committee Meeting Minutes dated 04.09.2015 recommending selection of 11 candidates and not proposing uniform set of eligibility criteria in comparison with the first phase of recruitment as experience was reduced to 10 years for five candidates in the second batch and they were selected arbitrarily from other working locations viz., Group Head Office without giving equal opportunity to all contract employees working in Plant and other areas of MFL. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
13.Dr.I.Vijayakumar, then CMD, MFL has approved the Selection Committee Meeting Minutes dated 04.09.2015 recommending selection of 11 candidates wherein no legal and administrative clearance as mentioned in the CMD's bulletin dated 31.12.2013 were obtained. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
14.Dr.I.Vijayakumar, then CMD, MFL has approved the Selection Committee Meeting Minutes dated 04.09.2015 recommending selection of 11 candidates despite the absence of "manpower request" as laid down in P.02 of MFL Recruitment Policy, and the proposal of recruitment was processed. Thus, Dr.I.Vijayakumar, then CMD, MFL has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964.
ANNEXURE -II Imputation of Charges 1.
a) The Clauses 4.1.1 a, b & c of MFL Recruitment Policy were not followed but instead an arbitrary sub clause d, was invoked to give employment by circumventing normal procedure.
b) In terms of Clause 4.6.1 of MFL's Recruitment Policy Page 20 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 No.2, "normally the number of candidates to be called for interview shall be in the ratio of 1:5. That is for each vacancy to be filled, the number of candidates to be called for interview shall be a minimum of 5". Had this been strictlly adhered to, it would have resulted in giving equal opportunity to all the downtrodden contract workmen engaged in MFL, including Plant Groupd and other Groups, thereby ensuring a fair selection.
c) The compliance of reservation roster is required to be prepared for all grades and to be followed while preparing / recruiting a candidate to the post. In this selection, no reservation roster as per extant rules has been prepared.
d) The contract labourers who have more than 15 years of relevant experience from Plant Group Services were not considered in the recruitment. If MFL, recruited the contract labourers who are directly linked with Plant activities, it would have been logical and motivating for all categories of the labourers and beneficial to sustian the production efficiency.
e) Fixing two sets of eligibility criteria for same cadre of recruitment in same pay scale is inappropriate. This has been intentionally done to accomodate certain individuals who worked in Administrative aread viz., CMD's OFfice, GM-F&A's Office. GM-Plant Office, Production and Inspection Department. It is also not clear how people who work in Administrative aread can perform the job of Plant Attendant, without relevant experience.
f) A commitment was given in the proposal dated 13.01.2014 that notification to the Employment Exchange will be resorted to in the second phase of recruitment. This was approved by the CMD, Dr.I.Vijayakumar. However, the same was not honoured and second batch was also recruited without following due procedure.
g) Dr.I.Vijayakumar, then CMD, MFL in his bulletin dated 31.12.2013 has mentioned the following:
"In order to bring up the status of under privileged and down trodden people, the janitorial labourers working in MFL for more than 15 years are being considered for Janitorial Attendant Trainees. subject to legal and administrative clearence."Page 21 of 43
https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 Dr.I.Vijayakumar failed to ensure compliance of his own stipulations in the selection process.
W.P.No.19128 of 2022 :
Annexure -I Statement of articles of charge framed against Dr.I.Vijayakumar, Retd. IRS formerly as CMD, Madras Fertilizers Limited .
Article -I In the Tender No.B & S PH-UK/2013 dated August 15,2013 for "Plant Upkeep and Bagging & Shipping", Dr.I.Vijayakumar as CMD, MFL had approved newly inserted Pre-Qualification Criterion viz., "Registered Private or Public Ltd. Company for the last 3 years (2010-11, 2011-12, 2012-13) only are eligible to apply for tender". This had resulted in restricted competitive quotes and disqualified as tenderer M/s.AVG Associates, who has already rendered similar service in MFL. On 19.09.2013, Dr.I.Vijayakumar has approved the proposal dated 16.09.2013 of DGM (Production) to accept the sole remaining offer to M/s.Sanco Trans Ltd., in which M/s.AVG Associates, bid was rejected due to newly inserted PQ criteria. Thus, Dr.I.Vijayakumar, has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii), 3(1)(vi), 3(1)(viii), 3(1)(ix), 3(1)(xii) & 3(1)(xvi) of CCS (Conduct) Rules, 1964.
Article -II For "Plant Upkeep & Bagging & Shipping", Tender No.B & S PHJJK/2013 dated August 15 2013, Dr.I.Vijayakumar as CMD, MFL vide his note dated 11.10.2013 had directed the Tender Committee to renegotiated with the sole hidder, going against CVC guidelines, subsequent to first negotiation. Thus, Dr.I.Vijayakumar, has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii), 3(1)(vi), 3(1)(viii), 3(1)(ix) & 3(1)(xviii).
Article -III Page 22 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 Dr.I.Vijayakumar as CMD, MFL has approved the proposal of GM(P & A) dated 25.01.2013 for terminating the contractor, M/s.Sri Devi Hospitality Services, as he was absconding and due to non-fulfilment of contractual obligations, related to Staff Canteen Contract (Tender No. 11/P & A/SC/2012-13 floated on 04.10.2012). Despite the above, Dr.I.Vijayakumar as CMD, MFL had approved the proposal of GM (P&A) for extension of contract (Tender No.1 A/P & A/LC/2013-13 dated 26.10.2012) for Labour Canteen handled by the same contractor, M/s.Sri Devid Hospitality Services, for one more year from 21.11.2013 vide order dated 13.11.2013. Thus, Dr.I.Vijayakumar, has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii), 3(1)(vi), 3(1)(viii), 3(1)(ix), 3(1)(xii) & 3(1)(xvi) of CCS (Conduct) Rules, 1964.
Article -IV Dr.I.Vijayakumar as CMD, MFL while approving the proposal of GM(P & A) dated 25.01.2013 for terminating the Staff Canteen Contract has not directed the official(s) concerned to keep the vendor M/s.Sri Devi Hospitality Services on Holiday List, despite the fact that the contractor was absconding and failed to fulfil the contractual obligation. Thus, Dr.I.Vijayakumar, has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii), 3(1)(vi), 3(1)(viii), 3(1)(ix), 3(1)(xii) & 3(1)(xvi) of CCS (Conduct) Rules, 1964.
Article -V In the Tender No.FSHR/MAINT/LS/111013/002 floated on 11.10.2013 for Day to Day Shutdown & Labour Supply Contract (Annual Tender), Dr.I.Vijayakumar, as CMD, MFL had approved the proposal dated 04.10.2013 on 09.10.2013, wherein one of the PQ Criteria, i.e., turnover was enhanced from Rs.2.0 Cr to Rs.3.50 Cr, without any objective basis, which resulted in exclusion of M/s.AVG Associates, who was an existing MFL Contractor. Thus, Dr.I.Vijayakumar, has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii), 3(1)(vi), 3(1)(viii), 3(1)(ix), 3(1)(xii) & 3(1)(xvi) of CCS (Conduct) Rules, 1964.
Article -VI Dr.I.Vijayakumar as CMD, MFL has approved the TCR No.T2013339 dated 12.11.2013 (Tender No. ESER/MAINT/LS/111013/0002 floated on 11.10.2013) on 15.11.2013 to award the contract, Day to Day Shutdown & Turunaround Page 23 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 Service (Annual Tender) to M/s. VD Swamy & Co., the lone bidder. In contract, Dr.I.Vijayakumar had earlier approved a proposal dated 05.04.2013 to scrap a tender (Tender No.002/2013-2015 floated on 12.02.2013) for the reason that there was only one qualified vendor. Such contradictory stands point to an intention to favour a particular bidder. Thus, Dr.I.Vijayakumar, has violated Rules 3(1)(i), 3(1)(ii) & 3(1)(iii), 3(1)(vi), 3(1)(viii), 3(1)(ix), 3(1)(xii) & 3(1)(xvi) of CCS (Conduct) Rules, 1964.
ANNEXURE - II Statement of imputations of misconduct or misbehaviour in support of the articles of charge framed against Dr.I.Vijayakumar, Retd, IRS formerly as CMD, Madras Fertilizers Limited.
1. In Production Department of MFL, contract Labourers are engaged for carrying out Bagging of finished products and handling / loading the same in Railway Wagons and Lorries / Trucks for movement of fertilizers to Warehouses and Consumer Stock Points at various locations in Southern States. For supplying contract labourers, the Company engages contractors through tender process in the name of "Plant Upkeep and Bagging & Shipping Contract". This contract is essential for ensuring uninterrupted Plant operations.
The subject tender was floated on 15.08.2013 at an estimated value of Rs.13 Crores with 06.09.2013 as the due date for submission of the bids (Two Part). The advertisement appeared in The Hindu & Daily Thanthi dated 15.08.2013 and the Notice Inviting Tender was also hosted in the Company's website.
Sailent features of the Notice Inviting Tender are :
S.No. Particulars Details
1. Estimated Value of the Rs.13 Crores
Contract
2. Due date for submission of 30.08.2012 and
Bids extended up to
06.09.2013
3. Date of Bid Opening 06.09.2013
4. EMD Rs.26 lacs
Page 24 of 43
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W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 S.No. Particulars Details
5. Security Deposit 5% of the contract value
6. Pre-Qualification Criteria Tenderer shall also have professionalism in upkeep / bagging/ handling & :
shipping of
finished fertilizer
products. The
Company should be a
Registered Private
or Public Limited
Company in the last
three years 2010-
11, 2011-12, 2012-
13.
In this tender, a new Pre-Qualification Criteria has been introduced viz., the bidder should be "Public/Private Limited Company for the financial years 2010-11, 2011-12 & 2012-13".
Two Bidders viz., 1.M/s.AVG Associates and 2. M/s.Sanco Trans Ltd., responded to the tender. The techno- commercial bids of these vendors were opened on 06.09.2013 CO approved the proposal dated 16.09.2013 on 19.09.2013 for disqualification of M/s.AVG Associates (An existing MFL labour supply Contractor), on the ground that they did not meet one of the pre-qualification criteria viz., The Company should be Registered Public or Private Ltd., in the three years 2010-11, 2011-12 & 2012-13.
Finally, CO approved the proposal dated 01.10.2013 on 11.10.2013 for award of contract to M/s.Sanco Trans Ltd., who ws the lone bidder, at a total value of Rs.13,73 crores and the contract was awarded for a period of one year effective November 1, 2013. Similar labour supply tender was scrapped earlier citing the reason of a lone bidder, whereas in the present case, the tender process Page 25 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 has been continued even though only one bidder was available.
Inclusion of "Registered Private or Public Ltd. Company for last 3 years (2010-11, 2011-12 and 2012-13)" in the PQ terms was restrictive and disqualified M/s.AVG Associates.
Having been an MFL contractor in the past, M/s.AVG Associates, have experience in handling MFL's Plant operations, including Bagging and Shipping, whereas M/s.Sanco Trans Ltd. have experience only in handling and transporting Port cargos and Custom House operations. They do not have exposure to multifarious handling operations in a running plant, particularly the bagging operations as per the Scope of Work in Tender - Part IV, Clauses 3 & 4.
M/s.AVG Associates was disqualified from one tender (Day to day Shutdown and Labour Supply) for "Not meeting the Turnover " criteria and the same vendor was disqualified from the present tender as not a "Public/Private Limited Company". From this, the intent for excluding M/s.AVG Associates from both the tenders is very clear.
In the case of scrapped Labour Supply contract (Tender No.002/2013-2015 dated 12.02.2013) CO has approved the proposal to scrap the tender citing the reason of a lone bidder. However, in the instant case, CO has allowed the tender process to continue, even though only one bidder was available. The CO has been taking contradictory stands from one tender to another tender, which points to malafide intention.
2. CO approved dated 16.09.2013 for conducting negotiations with the lone bidder after opening of Price Bid. AGain a repear negotiation was conducted with the lone bidder on CO's direction vide his order dated 11.10.2013, going against CVC guidelines, before finally awarding the contract.
3. MFL is operating two canteens viz., Staff Canteen and Labour Canteen for providing canteen service to its Staff and Contract Labourers, respectively. Contractors are appointed through tender process to operate the above Page 26 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 canteens. Accordingly, a contract was awarded to M/s.Shri Devi Hospitality Services effective 20.11.2012 for a period of one year from 21.11.2012 to 20.11.2013 to operated the Labour Canteen. When the contract was about to expire, a proposal dated 01.11.2013 was put up to CO for extension by one more year (as per the terms and conditions vide previous award of contract dated 20.11.2012), whihc was approved by CO on 13.11.2013. Based on the approval, the contract was extended for a period of one year from 21.11.2013 to 20.11.2014.
The Sailent features of the extension of contract are as follows :
S.No. Description Details
1. The Value of the Contract Rs.15.74. Lacs
2. Contract period 21.11.2013 -
20.11.2014
3. Date of contract awarded 15.11.2013
4. Security deposit 5% of the contract
value (ie.
Rs.78700/-)
5. Justification for extension of The labour canteen contract instead of floating contract was fresh tenders. awarded to M/s.Sri Devi Hospitality services for one year from November 21, 2012 with a provision to extend one more year on the same rate, terms and conditions with mutually agreed upon.
6. Date of approval for extension 13.11.2013
a) The same contractor, M/s.Shri Devi Hospitality Service, who was operating an ongoing staff canteen contract (Tender No.11/P&A/SC/2012-13 dated 16.11.2012) had reneged on the contract and discontinued the services on Page 27 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 12.01.2013.
b) GM (P&A), had issued a letter dated 14.06.2013 to the Contractor, M/s.Sri Devi Hospitality Services, during the original period of the contract i.e. from 21.11.2012 to 20.11.2013, highlighting deficiencies in remittance of monthly PF and ESI contributions to the tune of Rs.1.45 lacs. This deficiency was apparently ignored while processing the extension of contract.
c) Considering the above, the extension of one year to the same contractor by the CO points of malafide motive.
4. When the proposal of GM (P&A) dated January 25, 2013 for termination of contract with M/s.Sri Devi Hospitality Services, with respect to staff canteen submitted for CO's approval, CO approved the proposal without any direction to keep the vendor (M/s.Sri Devi Hospitality Services) on holiday list in view of his not fulfilling the contractual obligations.
5. In MFL, especially in Maintenance Department, contract labourers are engatged to assist the Technical Assistants as the nature of maintenance activities / job requires three or four manpower for each jop. Various factors had led to insufficient strength of Technical Assistants (Maintenance). This being the case, Maintenance department has been engaging contract labourers in order to enable smooth operation of Plant. For supplying contract labourers, they engage contractors through tender process in the name of Day-to-day Shutdown and Turnaround Services. this contracts is essential for uninterrupted production.
Before the subject tender was opened, a tender was floated on 12.02.2013 with an estimated value of Rs.7.05 Cr., for a period of one year and seven bidders responded. Four bidders were disqualified on techno- commercial grounds, thereby leaving three bidders to qualify. Subsequent to opening of price bids, two more bidders were disqualified stating that they were benamies of each other, leaving only one bidder. Price bid of the lone bidder was not opened citing the reason that it was single bidder. Hence, the tender was scrapped as per CO's approval dated 05.04.2013.
Page 28 of 43https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 The same tender was re-floated on 27.04.2013 with new PQ criteria by inserting a clause the bidder should be “Public / Private Limited Company for the financial years 2009-10, 2010-11 & 2011-12”. This tender could not be finalised due to WP filed in Hon'ble High Court of Madras.
Existing extended contract was valid up to 15.08.2013. In the meanwhile, the subject annual tender process was initiated.
The subject Tender No.ESER/MAINT/LS/111013/002 was floated on 11.10.2013 for a value of Rs.7.10 Crore for a period of one year.
Based on CO's approval, E-Tender Notice was published in The Hindu & Daily Thanthi on 11.10.2013 and IT Kolkata. NIT was also posted in the Comapany's website (Tender No.ESER/MAINT/LS/111013/002 dated 11.10.2013, salient features of which are :
S.No. Description Details
1 Estimated Value of the Rs.7.10 Cr.
contract
2 Due date for submission of 13.00 hrs., of 29.10.2013
Bids
3 Date of Bid opening 14.00 hrs of 29.10.2013
4 EMD Rs.14.20 lacs
5 Security Deposit 5% of the contract value
6 Pre-Qualification Criteria Tenderer whose business
turnover is more than or
equal to Rs.3.50 Cr per
annum in the financial
years 2010-11, 2011-12,
2012-13 only need apply.
Tenderer shall attach
copies of Income Tax
returns filed for the
past three financial
years
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W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 In response to MFL NIT, the following vendors have submitted their bids before the due date.
1.VD Swamy &Co Pvt Ltd.
2.AVG Associates The Techno-commercial bids of the above tenderers were opened on 29.10.2013 and M/s.VD Swamy & Co.Pvt Ltd was techno commercially qualified. The other tenderor, M/s.AVG Associates (who was also an existing MFL Labour Supply contractor) was disqualified due to non-compliance of one of the PQ criteria ie., tenderer whose business turnover is more than or equal to Rs.3.50 Cr per annum in the financial years 2010-11, 2011-12, 2012-13 only need apply. The PQ Criteria was changed from Rs.2 Crores to Rs.3.5 Crores from the earlier tender No.002/2013-14 dated 06.08.2013 to the subject matter.
The following irregularities are noticed in the above tender process which point to malafide intentions :
a) Change of pre-qualification criteria viz., Turnover from Rs.2.0 Cr to Rs.3.50 Cr., was made to suit a particular contractor and at the same time exclude the others.
Incidentally, the earlier Tender No.002/2013-2015 floated on 12.02.2013 was scrapped ostensibly to enable more bidders to participate (Ref.GM -Plant note dated 02.04.2013), whereas, in reality, the number of bids has only come down, due to the above restrictive Pre- Qualification Clause.
b) The earlier tender had been scrapped on the grounds that only one qualified bidder was available. Whereas, in this annual tender, even though only one qualified bidder was available in the fray, the tender process proceeded further and the contract awarded to the only qualified bidder. This exposes a contradictory stand.
6.CO approved the proposal dated 06.11.2013 on the same day for disqualification of M/s.AVG Associates, on the ground that they did not meet one of the prequalification criteria viz., tenderer whose business turnover is more than or equal to Rs.3.50 Cr per annum in the financial years 2010-11, 2011-12, 2012-13 only need apply, and process the lone bid of M/s.VD Swamy & Co.Pvt Ltd., Page 30 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 Finally, CO had approved the tender vide TCR No.T2013339 dated 12.11.2013 on 15.11.2013 for award of contract to M/s.VD Swamy & Co., who was the lone L1 bidder at a total value of Rs.7.10 Cr. and the contract was awarded to him for a period of one year effective 16.11.2013.”
5.Heard, Mr.R.Ramachandran, learned counsel appearing for the petitioner and Mr.V.Vijayashankar, learned Senior Counsel appearing for the respondents 1 to 5.
6.The learned counsel for the petitioner would contend that the mental agony and sufferings he has suffered due to the protracted disciplinary proceedings in itself has been more than a punishment for him. His further contention is that the charge memos were issued much after the retirement without the assent of the President and that they were also already time barred. It was further contended that he was not furnished with any of the documents which were referred to by the respondents in the charge memos. It was further argued that the disciplinary action was intiated by the parent department for certain acts of his, in the borrowing department i.e. M/s.Madras Fertilizers Limited, Page 31 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 which is wrong. It was also pointed out that the time schedule for disciplinary proceedings was not adhered to by the respondents and also there was a change of inquiry officer without assigning any reason. He further added that while getting the first stage advice from Central Vigilance Commission (CVC), the comparative statement had his version/explanation for the allegations which in fact was never given by him or sought from him. Furthermore, the copy of the first stage advice was not furnished to him which also was fatal to the charge memo. He also relied on the Apex Court judgment in Appeal (Civil) No.4901 of 2005 in which it was observed thus :
"Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant.
................ For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."Page 32 of 43
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7.Per contra Mr.V.Vijayashankar, learned Senior Counsel for the respondents contended that there was no slip up in the procedure for initiating the disciplinary process. Firstly, the first stage advice was obtained from the Central Vigilance Commission (CVC) for which issuance of show cause is not mandatory. Secondly, a copy of the first advice is an internal matter and a copy need not be furnished to the delinquent employee. It was also contended that the parent department had full authority to initiate action on the officer deputed to another organisation. His another contention was that the petitioner did not cooperate with the respondents and was bent upon protracting the proceedings by way of approaching the Central Administrative Tribunal, Chennai with four OAs. His contention was that the charges were quite serious and instead of facing the inquiry the petitioner avoided that and kept making baseless accusation of bias and vindictiveness. The petitioner being the numero uno of the organisation i.e. M/s.Madras Fertilizers Limited conducted himself in such a manner making unilateral decisions not commensurate of what was expected of him. His Page 33 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 indiscriminate decisions led to pecuniary loss to the organisation and he is definitely accountable for his decisions. Thus, he argued that the Central Administrative Tribunal, Chennai orders were correct and just.
8.First and foremost it is to be noted that the charge memos have been issued to a retired senior official i.e. after his superannuation.
Rule 9 (2) (b) of CCS (Pension Rules) 1972 reads as :
"The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re- employment, -
i. shall not be instituted save with the sanction of the President ; ii. shall not be in respect of any event which took place more than four years before such institution; and iii. shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service"
Now let us go into the four charge memos.
Page 34 of 43https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 S.No. Date of Charge Memo Date of Event Whether within four years
1. 03.11.2017 13.11.2013 yes
2. 27.02.2018 28.02.2014 yes
3. 29.06.2018 02.07.2014 yes
4. 14.08.2019 19.08.2015 yes Thus it is clear that all the four charge memos were issued within 4 years from the date of events. The main allegation in the four charge memos are:
(a) 29.06.2018 - irregularities in procurement of Phosphoric Acid
(b) 27.02.2018 - Appointment of Liaison Officer without following rules.
(c) 14.08.2019 - Appointment of Plant Attendant Trainees without following rules
(d) 03.11.2017 - Tender conditions altered to favour a particular person / company This is clear that all the allegations are serious in nature.Page 35 of 43
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9.The President's sanction was obtained in all the four charge memos as is evidenced from the content of the memorandums. Every memorandum of charge reads as, "In pursuance of the sanction accorded by the President under Rule 9 of CCS (Pension Rules) 1972 .............."
The reference number and date of the respective revenue order also given in every memorandum.
10.The aspect of delay in the proceedings cannot be termed as a very lengthy and protracted one. This is because of the Covid situation snatching away two precious years i.e. 2020 and 2021. However, the issuance of charge memo in 2017, 2018 & 2019 was not beyond the limitation period. Regarding this aspect, reliance is placed on AIR 1998 SC 1833 in State of Andhra Pradesh vs. N.Radhakishan, wherein the Apex Court observed thus :
"19.It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay Page 36 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. the essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he s not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer enterusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from Page 37 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration."
11. The contention that the parent department ought not to have initiated the disciplinary proceedings for acts in the borrowing department, also is beyond any reasoning. Actually from the sanction note of Central Vigilance Committee (CVC) it is crystal clear that the borrowing department i.e. the Ministry of Fertilizers & Chemicals was kept in the loop and was properly intimated about the acts of the petitioner and the necessity to initiate disciplinary proceedings.
12.The petitioner also had contended that no show cause notice was issued before issuance of the charge memo. According to him, the first stage advice mandates the reply of the delinquent officer on each allegation/charge and therefore, non-issuance of show cause notice is a Page 38 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 violation of the procedure. Issuance of show cause notice is not mandatory in service jurisprudence. The first stage advice is an internal procedure and the Central Vigilance Committee (CVC) after analysing the entire records and facts of the case comes to a conclusion and non-
issuance of show cause notice to the petitioner had no serious impact on the Central Vigilance Committee (CVC) advice in the light of the seriousness of the allegations as could be deciphered from a plain reading of the charge memos.
13.In this context the Central Vigilance Committee (CVC) memorandum dated 28.09.2000 reads as :
"3.The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e. first stage advice is obtained on the investigation report before issue of the charge sheet, and second stage advice is obtained either on receipt of reply to the charge sheet or on receipt of inquiry report. It, however, does not seem necessary to call for the representation of the concerned employee on the first stage advice as the concerned employee, in any case, gets an opportunity to represent against the proposal for initiation of Page 39 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 departmental proceedings against him. Therefore, a copy of the Commission's first stage advice may be made available to the concerned employee along with a copy of the charge sheet served upon him, for his information. However, when the CVC's second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IO's report, to give him an opportunity to make representation against IO's findings and the CVC's advice, if he desires to do so."
Therefore this contention of the petitioner is also not acceptable.
14. The litigations initiated by the petitioner in Central Administration Tribunal, Chennai and his refusal to present himself before the Inquiry Committee are also the reasons for delay. He ought to have attended the inquiry, undergone the trial and proved his innocence.
Instead he has chosen to litigate. The conduct of the petitioner who has held very high position is unbecoming of an Executive. He could have completed the inquiry proceedings by now had he cooperated with the Inquiry Committee. Instead he has also found fault with the change of Inquiry Officer by the first respondent, which is an administrative Page 40 of 43 https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 decision and needs no approval or consent from the charged officer. All are equal before law. If the charges made against him are not proved he may not be awarded any punishment also. But avoiding the trial and litigating on trivial issues which will not be entertained by any forum is only a dilatory tactic and would delay the logical conclusion.
15.In view of the discussions made above, we find no reason to interfere with the orders of the Central Administrative Tribunal, Chennai, dated 02.11.2021, made in O.A.Nos.310/00451/2020, 310/00450/2020, 310/00449/2020 & 310/00448/2020. In the result, the Writ Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
(V.M.V.,J.) (R.H.,J.)
30.01.2023
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
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W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 To,
1.The Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, Government of India, New Delhi.
2.The Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi - 110 001.
3.The Secretary to the Government of India, Department of Fertilizers, Ministry of Chemical and Fertilizers, Shastri Bhavan, New Delhi - 110 001.
4.The Principal Director General of Income Tax (Vigilance), Dyal Singh Public Library Building, No.1, Deen Dyal Upadhyay Marg, New Delhi.
5.The Joint Secretary and Chief Vigilance Officer, Department of Fertilizers, Ministry of Chemical and Fertilizers, Shastri Bhavan, New Delhi - 110 001.
6.The Registrar, Central Administrative Tribunal, Madras Bench, Chennai - 600 104.
Page 42 of 43https://www.mhc.tn.gov.in/judis W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 V.M.VELUMANI, J.
and R. HEMALATHA, J.
mtl Pre-delivery Order in W.P.Nos.3454, 18422, 19083 & 19128 of 2022 and W.M.P.Nos.3565, 15997, 17773, 18393 &18425 of 2022 30.01.2023 Page 43 of 43 https://www.mhc.tn.gov.in/judis