Central Administrative Tribunal - Kolkata
Dilip Kumar Gupta vs M/O Defence on 2 February, 2024
1 OA 866/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A. 350/866/2017
Heard on : 18.01.2024
Pronounced on : 02.02.2024
Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
Shri Dilip Kumar Gupta, son of Shri Manohar Lal Gupta, aged
about 58 years, working for gain as Deputy Director General,
under the DGOF & Chairman, Ordnance Factory Board, 10-A, S.
K. Bose Road, Kolkata- 700001 and residing at Flat No. 20,
Type VI, Sixth Floor, Nizam Palace, Kolkata - 700020.
......Applicant
Vs.
1. The Union of India service through the Secretary, Ministry
of Defence, Department of Defence Production, having its office
at South Block, New Delhi-110011.
2. Ordnance Factory Board service through the DGOF &
Chairman, Ordnance Factory Board, 10-A, S. K. Bose Road,
Kolkata- 700001.
3. The Under Secretary to the Government of India,
Department of Defence Production, Ministry of Defence, New
Delhi-110011.
4. The Desk Officer, Department of Defence Production,
Ministry of Defence, New Delhi - 110011.
......Respondents
For the Applicant : Mr. N. P. Biswas, Counsel
For the Respondents : Mr. S. Paul, Counsel
2 OA 866/2017
ORDER
Per: Suchitto Kumar Das, Administrative Member
1. The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief:
a) To issue an order / direction to cancel, withdraw and / or rescind the impugned order vide No. 13024/6/Vig.II/OFB/2012 (Vol.III.) dated 27.10.2016, passed by the Desk Officer, by order and in the name of the President, imposing upon the applicant a penalty of "withholding of one increment of pay for one year without cumulative effect." and as contained at Annexure-A/4.
b) To issue an order / direction to cancel, withdraw and / or rescind the impugned Memorandum of Charges vide No. 13/US(Vig.)/2010/D(Vig.) dated 28.08.2012, issued by the Desk Officer, by order and in the name of the President, alleging that the applicant failed to maintain absolute integrity, devotion to duty and did acts unbecoming of the public servant and thus committed gross misconduct as provided in CCS (Conduct) rule No. Rule 3 (1)
(i), (ii) and (iii) and as contained at Annexure- A /1.
c) To issue an order / direction to cancel, withdraw and / or rescind the impugned order vide No. 13024/6/Vig.II / OFB/2012 (Vol.III.) dated 27.10.2010, 07.04.2017, passed by the Under Secretary to the Government of India, by order and in the name of the President, rejecting the review application dated 07.12.2016 and as contained at Annexure - A/6.
d) To pass any other just and equitable order or further order or orders and / or direction or directions, which may be considered appropriate in the facts and circumstances of the case.
e) To award costs pertaining to this application."
2.1 The applicant belonged to the Indian Ordnance Factory Service (IOFS). While working in Ordnance Factory, Bolangir, Odisha, the applicant was served with a charge sheet under Rule 14 of the CCS (CC&A) Rules, 1965, alleging gross misconduct in violation of rule No. 3(1) (i), (ii), & (iii) of the CCS (Conduct) Rules, 1964, vide Memorandum dated 28.08.2012. 2.2 In Article-I of the Memorandum, it was alleged that as per Tender dated 28.01.10, the bidders were required to submit EMD of Rs 2,84,419/- along with their bid. M/s. Menghani Industries, Raipur & M/s. Shree Bhawani Industries, Raipur, did not submit EMD as required in the tender, thus their bids are liable to be rejected summarily. The applicant who was a member of 3 OA 866/2017 the TEC did not discuss the above deficiency in the minutes of the TEC and declared both M/s. Menghani Industries, Raipur & M/s. Shree Bhawani Industries, Raipur technically qualified and recommended opening of their price bids, thus adopting nontransparent & inequitable method to show favour to both M/s. Menghani Industries, Raipur & M/s. Shree Bhawani Industries, Raipur. In the Article -II of the Memorandum, it was alleged that the applicant as TEC member in collusion with other officers of OFBL created a nexus in overlooking the deficiencies as mentioned in the article and helped in cartel formation. The case was investigated at the instance of CVO and first stage consultation with the CVC was made before issue of the charge sheet. 2.3 On denial of the charges by the applicant through a written statement of defence dated 09.11.2012, the Disciplinary Authority appointed the Inquiry Authority and the Presenting Officer to inquire into the charges against the applicant. The Inquiry Officer (I.O.) after holding oral inquiry submitted the Inquiry Report vide confidential letter dated 29.08.2014, holding Article-l as "proved" and Article- Il as "Not proved". 2.4 Disciplinary Authority imposed the punishment of withholding of one increment for one year with non cumulative effect vide order dated 27.10.2016. The applicant submits that the finding of the I.O., so far as the Article-I is concerned is not based on proper appreciation of material on record, but on the suspicion and surmises and to that extent the finding is perverse. Aggrieved by the departmental proceedings and the punishment imposed on him, the applicant has moved this application. 4 OA 866/2017
3. Learned Counsel for the applicant states that the Disciplinary Authority without proper evaluation of evidences on record and without application of mind, passed the punishment order.
3.1 Learned Counsel for the applicant submits that it is the settled principle of law that in the absence of proved corruption, fraud or improper motive to oblige someone or to deprive someone, bonafide action taken in good faith, in exercise of official duties and in public interest, cannot constitute 'misconduct' for the purpose of departmental action. [G.P. Sewalia v. Union of India & Anr. 2009(2) S.L.J. 360 (CAT-PB)]. In Inspector Prem Chand v. Government of NTC of Delhi & Ors., (2007) 4 SCC 566, the Hon'ble Apex Court after discussing the case law has held that an error of judgment or negligence simpliciter would not constitute misconduct. 3.2 Learned Counsel for the applicant states that the applicant has come to know that the Chairman and Secretary of the said TEC were also charged for the same allegation as that of Article -I of the charges in respect of the applicant. Disciplinary Authority dropped the charges in both the cases and exonerated both the officials. In case of the Chairman, TEC, the Disciplinary Authority has observed that the fact of the matter was not a case of claiming exemption but adjustment of amount available with Ordnance Factory, which was due for refund against EMD payable in the case of the instant tender. Further, there is no evidence of any financial loss to the Government on this account and the Chairman of the TEC had raised the issue during the TEC which went by the advice of the Addl. CFA that Government interest was protected. Learned Counsel submits that in case of the Secretary, TEC, the Disciplinary Authority has observed in respect of the same and similar charge that there is no evidence to suggest that the action of the 5 OA 866/2017 Charged Officer was aimed at extending any favor to the two firms and the same is in the nature of procedural violation. Further, there is no evidence to suggest that the Department incurred any financial loss on this account. According to the Learned Counsel for the applicant similar observations are applicable in case of the applicant as well.
3.3 Learned Counsel for the applicant submits that the penalty of withholding of one increment of pay for one year without cumulative effect, in the present case, has been imposed by order dated 27.10.2016. The increment which was due on 01.07.2017 i.e. after the date of order, was withheld and the applicant was not able to draw the pay which he should have drawn but for the penalty, because the applicant superannuated on 30.06.2018. The penalty has thus adversely affected the pension, gratuity and other terminal benefits, which is not permissible in case of any minor penalties provided under Rule 11 of the CCS (CC&A) Rules, 1965. Thus the penalty order is patently illegal, inoperable and deserves to be quashed and set aside.
4. Per contra, the respondents denied that there has been any lapse or omission on the part of the respondents in any manner whatsoever. 4.1 In respect of the contention of the applicant that a copy of CVC first stage advice was not provided to him, it is stated by the respondents that as per Government of India's decision, issued vide CVC circular dated 28.09.2000, it is not necessary to call for the representation of the concerned employee on the first stage advice. The applicant was accorded opportunity at every stage of disciplinary proceedings (viz., defence statement against the Charge Memo, examination of Prosecution documents, cross examination of 6 OA 866/2017 Prosecution Witnesses, representation against the brief of Presenting Officer, representation against the inquiry report) to defend himself. 4.2 The respondents, in their reply, state that the Inquiry Officer not only found that though the purpose of achieving the main object of Earnest Money Deposit in all respect was there, but also found that this act was not in accordance with MM & PM guidelines and did not ensure equal opportunity to all the vendors. The charge specifically states that the applicant did not discuss the deficiency of non-submission of EMD and over looked the deficiency. The Inquiry Officer has held that it is sufficiently established that the applicant did not discuss the point of non-submission of EMD in TEC and overlooked the deficiency. Thus, Inquiry Officer has held that the charge mentioned in Article-I is proved.
4.3 Learned Counsel for the respondents contends that the applicant as a member of the TEC has not recorded any reason as to how the request for EMD Exemption by the two firms were accepted when there was no such provision in the TE. There was no provision in the TE to exempt EMD or to consider pending dues to the prospective bidders as EMD. The said TE Condition was made public through open advertisement. So exempting EMD on the basis of the firm's request or accepting EMD in any other form than specified in the advertisement would imply deviation from predefined financial terms of the TE and denial of equal opportunity to all prospective bidders.
4.4 Learned Counsel for the respondents submits that the Hon'ble Supreme Court in J. Ahmed vs. UOI (1979) has held that gross negligence in the performance of one's duty may not involve mens rea, yet it may constitute 7 OA 866/2017 misconduct for disciplinary proceedings. In the instant case, it has been proved that the applicant has not acted in a transparent and equitable manner and shown undue favour to two trade firms by violating a pre-defined tender clause. The Chairman & Secretary of the TEC were already superannuated and their cases were referred by the Disciplinary Authority to the Union Public Service Commission for advice as per provisions of Rule 9 (1) of CCS (Pension) Rules, 1972. UPSC, after taking into account all facts and circumstances relevant to the case has observed that the misconduct proved against them (i.e., the Chairman & Secretary of the TEC as referred by the applicant) was not so grave as to warrant a cut in their pensions or other pensionary benefits. Therefore, it is evident that UPSC also concluded that misconduct against two other members of the TEC referred to by the applicant stood proved. However, that was not so grave as to warrant cut in pension. Therefore, the applicant's contention that Disciplinary Authority has not found co- delinquents blameworthy is not correct.
5. Heard the parties at length. Perusal the material on record. 5.1 At this stage it is apt to mention that Hon'ble Apex Court in the case of B C Chaturvedi Vs UOI reported in 1995 (6) SCC 749 wherein it was held that:
"judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The court/Tribunal has its power of judicial review but it does not act as appellate authority to re-appreciate the evidence in its arrival at its own dependent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in the manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry particularly where the 8 OA 866/2017 conclusion or finding reached by the Disciplinary Authority is based on no evidence."
It is appropriate to refer again the judgment passed by the Hon'ble Apex Court in the State of Karnataka & Anr. vs. Umesh in Civil Appeal Nos. 1763-1764 of 2022, wherein it has been held that:-
"17. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re- appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct."
We also take note of the judgment passed by a Three Judge Bench of the Hon'ble Apex court in the case of Pravin Kumar v. UOI & ors. (2020) 9 SCC 471 wherein it is held that:
"it would be gainsaid that judicial review is an evaluation of the decision making process, and not the merits of the decision itself. Judicial Review seek to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest error of law or procedure which might result in significant injustice or in case of bias or gross unreasonableness of outcome."
Further, it is worthwhile to refer to the law laid down by the Hon'ble Apex Court in the case of The State of Karnataka & anr. v. N. Gangarj reported in (2020) 3 SCC 423 wherein by referring to a catena of judgments passed by the Hon'ble Apex Court on the point of scope of judicial review in the matter of disciplinary proceeding it has been held that:
".... We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse."
Further, in the said judgment it has been held that:
".... The discrepancies in the evidence will not make it a case of no evidence. The enquiry officer had appreciated the evidence and returned a finding that the respondent is guilty of misconduct.
Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere 9 OA 866/2017 with the finding of facts recorded by reappreciating evidence as if the courts are the appellate authority."
5.2 Charge contained in Article-I in the charge memorandum has been proved in the inquiry. Applicant contends that the IO's conclusion in respect of charge in Article-I is erroneous. It is the applicant's case that since the Tender Scrutiny Committee had mentioned in its report that the two bidders in question had claimed exemption from EMD, it was not considered necessary to discuss the issue of EMD in the TEC minutes.
It is also claimed that in the absence of any malafide, the applicant cannot be charged with having committed misconduct. The contentions of the applicant have been rebutted by the respondents. According to them the tender conditions did not make any provision for exemption from payment of EMD by a bidder. Even otherwise the issue should have been addressed by the members of the TEC in the minutes. This was not done and as a member of the TEC, the applicant failed in his duty. Respondents have also concluded that by exempting the bidders from payment of EMD, the TEC has extended undue advantage to the successful bidders vis-a-vis others.
5.3 It is the settled principle of law that the scope of judicial review in a departmental proceeding does not extend to reassessing the evidence which has already been evaluated by the inquiring and the disciplinary authorities. Applicant has further contended that the Chairman and the Secretary of the TEC were exonerated by the authorities and no action was taken against them whereas the applicant has been held guilty as a member of the same Tender Evaluation Committee. The respondents in their reply have clarified that the Chairman and the Secretary of the Committee had superannuated and in UPSC's view the misconduct on their part was not grave enough to warrant a 10 OA 866/2017 cut in pension under Rule 9 of the CCS (CCA) Rules. However, the Chairman and the Secretary of the TEC were not exonerated by the UPSC. We find merit in the respondents' averment that since the applicant was a serving employee, he was punished for the proven misconduct with a minor penalty. We therefore find no reason to interfere with the departmental proceedings on the above mentioned grounds.
5.4 Applicant has further contended that although a minor penalty of withholding of his increment for one year without cumulative effect was imposed on him, the actual impact of the punishment was cumulative affecting his pension as he superannuated from Service before the increment could be restored. In our opinion, implicit in an order of withholding of increment without cumulative effect is to give an opportunity to the charged official to earn back the increment during his service period. This opportunity has been denied to the applicant in the instant case. He was punished vide order dated 27.10.2016. His next increment due on 01.07.2017 was withheld as per the punishment order. He superannuated on 30.06.2018. Therefore, his pension was fixed with reference to his pay without the last increment which he would have got but for the punishment. As the basic pension remains unchanged throughout his retired life, he has been financially deprived permanently. This may be an unintended consequences of the minor penalty imposed on him but is a gross miscarriage of justice and is against the principles of fair play. 5.5 In its judgment in State of Karnataka & Anr. vs. Umesh(supra) quoted in para 5.1 above, the Hon'ble Apex Court has observed that the Court in the exercise of judicial review must restrict its review to determine, among other things, whether the penalty is disproportionate to the proved misconduct. In our opinion, the punishment order prescribing a minor penalty 11 OA 866/2017 with non-cumulative effect has actually inflicted a punishment with a graver consequence than was intended. For this reason, the punishment is held to be disproportionate to the proved misconduct.
5.6 We, therefore, deem it fit to quash and set-aside the impugned punishment order dated 27.10.2016 and the reviewing authority's order dated 07.12.2016.
Respondents are directed to grant the increment due to the applicant on 01.07.2017 without the effect of the impugned orders and refix his pension accordingly within a period of 04(four) months from the date of receipt of a certified copy of this order. Arrears due to him as a consequence of refixation of his pension should be paid to the applicant by the respondents within a period of 60 days thereafter.
6. OA is disposed of. No Costs.
(Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sl