Central Administrative Tribunal - Delhi
P L Gupta vs Cpwd on 18 October, 2024
1
OA No. 2926/2017
Item No. 21/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2926/2017
Reserved on: - 20.09.2024
Pronounced on: - 18.10.2024
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Shri P.L. Gupta
Superintending Engineer (Retd)
CPWD
Age 62 years
R/0 23-A, Shivam Enclave
DDA Flats (MIG)
Shahdara, Delhi-110032. ... Applicant
(By Advocate: Mr. Padma Kr. S)
Versus
1. Union of India, through
The Secretary
Ministry of Urban Development
Nirman Bhawan
New Delhi-110011
2. Director General
Central Public Works Department (CPWD)
Ministry of Urban Development
Nirman Bhawan
New Delhi-110011
... Respondents
(By Advocate:Mr. R K Sharma)
2
OA No. 2926/2017
Item No. 21/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in Para 8 of the OA, has prayed for the following reliefs: -
"(a) Quash and set aside the impugned order dated27.6.2017 with all consequential benefits.
(b) Direct the respondents to release the withheld amount of pension with interest thereon.
(c) Grant the applicant cost of litigation, it being a fit case for grant of litigation cost.
(d) Any other relief which this Hon'ble Tribunal may be pleased grant under the facts and circumstances of the case."
2. The undisputed facts which are apparent from the pleadings available on record are that the applicant is aggrieved by the illegal and arbitrary imposition of penalty on him vide order dated 27.06.2017 (Annexure-A/1). He further submits that he is now retired from service and is aggrieved by the imposition of the penalty of withholding of 20% of the monthly pension otherwise admissible to him for a period of 04 years. It is further stated that this penalty has been imposed on the allegation that the applicant has not initiated the case for filing a Recovery Suit against a contractor within the limitation period and therefore, caused loss to the government. He further states that there was a perceptional difference in the case of period of limitation for the 3 OA No. 2926/2017 Item No. 21/C-II Government to file suit for recovery. While one Chief Engineer assumed that the period of limitation was 3 years while another Chief Engineer correctly stated later that the Limitation Period for the Government to file Suit for Recovery is 30 years. Ultimately, the suit has since been admitted by the Hon'ble High Court of Delhi and is still pending adjudication. Therefore, this presumption resulted in the initiation of charge memo against the applicant and imposition of withholding of 20% of the monthly pension otherwise admissible to him for a period of 04 years. It is further submitted that the imposition of cut in pension can only be done if there is grave misconduct/grave negligence. In the present case, there is neither the recovery suit was barred by limitation nor the loss actually occurred.
3. The applicant has placed reliance on the order/judgment passed by the Hon'ble Supreme Court in UOI Vs. J. Ahmed (AIR 1979) SC 1022 wherein the Hon'ble Apex Court has held that misconduct means, misconduct arising from ill motive, acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.
4. The applicant further states that the charge memo is vague and not on the basis of any actual fact. The charge memo is based on a presumption that the applicant allowed financial advantage to the contractor, given undue favour to the contractor, indulged 4 OA No. 2926/2017 Item No. 21/C-II himself in the adverse action against the department and which would have resulted in huge loss to the Government. It is apparent from the pleadings that the recovery suit is still pending with the Hon'ble High Court and what loss has been caused to the department is yet to be ascertained.
5. The applicant also mentions that he neither had mala fide intention nor had any knowledge about providing any financial benefit to the contractor. He claims that the Disciplinary Authority without any application of mind recorded in the penalty order that considering the circumstances in totality and an objective assessment of the entire case, the President has accepted the advice tendered by the UPSC and accordingly, hereby imposed penalty of withholding of 20% of the monthly pension otherwise admissible to the applicant for a period of 4 years.
6. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
7.Counter reply has been filed by the respondents on25.10.2017 wherein it has been stated that the applicant during the aforesaid period and while functioning as Executive Engineer in the aforesaid office, has not initiated any action for preparing the self-contained note for filing of recovery suit against the amount of Rs. 1,27,97,058/- plus interest thereon outstanding against the 5 OA No. 2926/2017 Item No. 21/C-II contractor as directed by his superior officer, allowing financial advantage to the contractor, given undue favour to the contractor, and which would have resulted in huge loss to the Government. It is also contended that the applicant failed to intimate/handover the matter pertaining to filing of recovery suit to his successor on his transfer from the division on 19.01.2009.
10. It is further stated that the applicant while posted and functioning as Executive Engineer (Civil), PWD-31/ BPD-212, PWD, Government of National Capital Territory of Delhi, by his above acts of omission and commission failed to maintain absolute integrity, exhibited lack of devotion to duty and failed to take all possible steps to ensure the integrity of subordinate staff, thereby contravening provision of Rules and of CCS (Conduct) Rules, 1964. It is also stated that in accordance with the statement of article of charge, the work C/o Balance work of Orthopaedic Block at LNJP Hospital, New Delhi was awarded to M/S Bharat Construction Corporation, vide Agreement No. 01/EE (C) I/DCE (P)/2003-04, with date of start as 27.04.2003 and date of completion as 26.11.2004. As the work was not executed at desired pace and therefore, rescinded by the then EE, division-31 with the approval of Works Advisory Board on 28.03.2006 and the compensation for delay amounting to Rs. 1,27,97,058/- in compliance of clause 2 of the said agreement was levied on the contractor i.e. M/S Bharat Construction 6 OA No. 2926/2017 Item No. 21/C-II Corporation by Superintending Engineer, Circle No. 8, PWD, vide letter dated 11.09.2006 with further direction to the contractor to deposit the compensation amount within 15 days. Since the contractor failed to deposit Rs. 1,27,97,058/-, the then Executive Engineer, Division No.31, PWD vide Memorandum dated 30.10.2006 circulated to all PWD/CPWD Divisions to recover the said amount or part thereof from any due amount to M/S Bharat construction Corporation. But no intimation regarding this has been received from any division office.
11. It is also pertinent to mention the fact that the contractor failed to deposit compensation amount of Rs. 1,27,97,058/-, was intimated to the then Superintending Engineer, Circle No. 8, PWD, by the then Executive Engineer, Division No. 31, PWD, vide letter dated 15.03.2007. Further, the then Executive Engineer, Division No. 31, PWD also sought the approval for allowing the filing of necessary recovery suit in this matter at that time. The then Superintending Engineer, Circle No. 8, PWD, vide letter dated 26.3.2007 directed the then Executive Engineer, Division No. 31, PWD, for preparing the self-contained note for filing of recovery suit in this matter. The then Executive Engineer, Division No. 31, PWD, on this letter dated 26.03.2007, made a noting to then AAO on 29.3.2007 and 13.04.2007 for taking action as directed by the then Superintending Engineer, Circle No. 8, PWD in his letter dated 26.03.2007. It is also stated 7 OA No. 2926/2017 Item No. 21/C-II that due to restructuring in PWD, the above work transferred from PWD Division No. 31 to PWD Division No. B-212 in April/May 2007. While handing over the charge to the applicant, the then Executive Engineer Division NO. 31, PWD, clearly mentioned the fact in the handing over note that for recovery of compensation levied on the contractor, wide circulation among the CPWD/PWD office was made. No office has intimated that the recoverable amount is available with them. Hence recovery suit in High Court of Delhi is to be filled after obtaining the approval from Competent Authority.
12.After taking the charge of PWD Division 31/BPD-212 on 09.05.2007, the applicant has not taken any further course of action for filing of recovery suit to recover the due amount of Rs. 1,27,97,058/- plus interest thereon, from M/S Bharat Construction Corporation, till he remained EE in-charge of the Division B-212, PWD upto 19.11.2009. He also failed to intimate/ handover the matter pertaining to filing of recovery suit to his successor on his transfer from the Division on 19.11.2009. It is a matter of record that this inaction of the applicant has allowed financial advantage to the contractor, given undue favour to the contractor and thus the applicant has indulged himself in the adverse action against the department, and which would have resulted in huge loss to the government.
8OA No. 2926/2017 Item No. 21/C-II
13.As the charges were not admitted by the applicant, an oral enquiry was ordered to be held by Shri O.P. Bhatia, Addl. Director General (Retd.), CPWD who was appointed as Inquiring Authority and a report dated 28.04.2014 was submitted by him holding the charges as partially proved.
14. The records of the inquiry were examined by the President and came to conclusion to tentatively disagree with the findings of the Inquiring Authority and issued Inquiry report along with disagreement note dated 28.04.2015 indicating that the charge under single Article as "tentatively proved" in disagreement with the inquiring authority.
15. Rejoinder has been filed by the applicant on 08.11.2017 wherein the applicant has denied all the allegations raised in the charge memo. According to him, the allegations are totally misconceived and are premature allegations, which never happened. He further submits that what was required to file a suit and the said suit was to be filed only after conclusion of the project, which has been specifically stated by the then Chief Engineer also. The issue is the filing of the recovery suit and which could have been done only after the work has been completed. In any case the issue regarding the action had already been given to the Assistant Accounts officer, which was not under the Applicant. It is admitted by the respondents that the 9 OA No. 2926/2017 Item No. 21/C-II Ex. Executive Engineer Div No.31 has sent the advice of the Superintending Engineer to the then AAO on29.3.2007 and it is also admitted that the Applicant took over the charge of two project work as Executive Engineer Building Project Division B-
212. Applicant has never worked as Executive Engineer Div No.31. It is submitted that no AAO was posted under the Applicant. However, an AAO was posted under Executive Engineer, B.P. Div B-211, who was directly reporting to EE BP DivB-211 and was also looking after the works under EE BP Div B-212 and 213 as additional charge. It is also relevant to mention that the Applicant who was EE BP Div B-212 had no administrative control over the AAO who was reporting to EE BP Div B-211, who was also initiating the ACRs of the AAO. It is relevant to mention that the Recovery suit is now pending and therefore, the allegation itself is without any substance. In any case the recovery suit could have been prepared after the project is completed, which happened after the applicant left the Division and consequently, the Recovery Suit was filed which is now before the Hon'ble Supreme Court. It is denied by the applicant that he has not handed over the file. He was never the custodian of the file, neither the respondents have shown that any file related to the case has been handed over to the Applicant for his personal custody. The only documents which were under the personal custody of EE BP Div B-212 were the agreements, 10 OA No. 2926/2017 Item No. 21/C-II executed between the CPWD and the Contractors. He also contends fact that no financial loss has resulted to the government. It states that the alleged act "would have resulted in huge loss to the government". He further submits that he is inflicted the penalty for something which has never happened.
16. We have heard learned counsels for the parties and perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsels for the respective parties carefully.
17. In Para 4.1 of the disagreement note, the Disciplinary Authority while giving his findings has stated that the Enquiring Authority has not deliberated on the fact that how the negligence was committed by the Charged Official (CO) by not filing the recovery suit at appropriate time has not resulted into undue favour to the contractor. It is stated that the suit for recovery in the Hon'ble High Court has been filed at belated stage which may or may not find favour with the Hon'ble High Court due to delayed filing. Had the recovery suit been filed by the Charged Official (CO) at appropriate time the amount probably would have been recovered by this time, therefore, inaction on the part of the CO in not filing the recovery suit at appropriate time being 11 OA No. 2926/2017 Item No. 21/C-II the Engineer-in-Charge amounts to extending undue favour to the contractor? Therefore, this cannot be construed as inadvertent negligence.
18. In view of the above position, the Disciplinary Authority disagreed with the findings of the Enquiring Officer and held that the Charged Official is accountable, thereby indirectly providing benefit to the contractor against the interest of the Government which amounts to deliberate negligence leading to serious misconduct and not inadvertent negligence. Therefore, the Disciplinary Authority i.e. the President of India tentatively held the charges under Article I as tentatively proved in disagreement note with the findings of the Inquiring Authority. The applicant has relied upon reply (Annexure-A/3, Pages no. 47 to 75) filed by him to Chief Vigilance Officer, CPWD vide letter dated 31.10.2023 has relied upon some documents which relate to filing of suit for recovery on 26.08.2013 of Rs. 2,84,74,094/- along with pendente lite and future interest as stated in Para 26 that the present suit is within limitation as per Article 112 of the Limitation Act. An abstract of Article 112 of the Limitation Act, 1963 has also been placed on record, which reads as follows: -
112. Any suit (except a suit before Thirty years When the period the Supreme Court in the of limitation exercise of its original would begin to jurisdiction) by or on behalf of run under this the Central Government or Act against a any State Government, like suit by a including the Government of private person the State of 12 OA No. 2926/2017 Item No. 21/C-II Jammu and Kashmir
19. Therefore, the assertion of the respondents that the applicant has willfully delayed filing of recovery suit in the Hon'ble High Court is incorrect.
20. Disagreement note dated 22.06.2016 (Annexure-A/11) reads as under: -
"Comments on the Findings of the Inquiring Authority (disagreement with specific findings): The Inquiring Authority in his report while giving his findings has also stated that a mechanism for regular review of such cases by the senior officers i.e. S.E. and C.E. was supposed to exist. But the C.O. was not issued any specific directions nor even a reminder by the SE/CE to agitate this issue during his entire tenure. The issue thus remained dormant in this period and probably lost its sight. Therefore, the Inquiring Authority concluded that the omissions on part of the C.O. in this regard were inadvertent and not deliberate. However, this does not dilute the responsibility of the CO as the necessity of filing recovery suit for realization of Govt. money was brought into the notice of the CO by his predecessor regarding mechanism for review at the time of handing over of charge to the CO. This suggestion of the Inquiring Authority is irrelevant and beyond the terms of reference to be inquired in by the Inquiring Authority. Divisional officer i.e. Executive Engineer is fully responsible for all the works to be handled by the division without (irrespective of) any reminder to be issued by any senior officer, therefore, this suggestion of Inquiring Authority is not relevant to the present case as C.O. was fully apprised by his predecessor about necessity of filing a recovery suit for huge sum of Rs. 1,27,97,058/-.
4(i). While giving his findings, the Inquiring Authority has not deliberated on the fact that how this negligence 13 OA No. 2926/2017 Item No. 21/C-II committed by the CO by not filing the recovery suit at appropriate time has not resulted into undue favour shown to the contractor. Recovery suit in the High court has been filed at a belated stage which may or may not find favour with the Hon'ble court due to the delayed filing. Had the recovery suit been filed by the CO at appropriate time, the amount probably would have been recovered by this time, therefore, inaction on the part of CO in not filing the recovery suit at appropriate time being the engineer-in-charge amounts to extending undue favour to the contractor, therefore this cannot be construed as inadvertent negligence. In view of this, the findings of IO are to be disagreed to the extent that Executive Engineer is completely responsible for all the works to be handled by the division without (irrespective of) any reminder to be issued by any senior officer and if the C.O. had any doubts about filing of the recovery suit, he could have sought guidance/directions from his superior officers) i.e. the S.E. for deciding further course of action. He neither made any such reference nor initiated any action in this regard during his entire tenure from 01.06.2007 to 19.11.2009 in that division for almost 2-1/2 years. The amount of recovery for which suit is to be filed is substantial amount of Rs.
1,27,97,058/- and there was ample time at the disposal of the CO but he still did not take any action in this regard. The amount would probably have been recovered by this time, had the recovery suit been filed by the CO at appropriate time when the same was brought into the notice of the CO by his predecessor. Therefore, inaction on the part of CO in not filing the recovery suit at appropriate time, being the engineer-in-charge amounts to extending undue favour to the contractor, thereby indirectly providing benefit to the contractor against the interest of the Government which amounts to deliberate negligence leading to serious misconduct and not inadvertent negligence.
4(ii). Therefore, the charge on the CO is tentatively proved to the extent that Shri P. L. Gupta, during the period from 01.06.2007 to 19.11.2009 and while functioning as Executive Engineer in the aforesaid office, 14 OA No. 2926/2017 Item No. 21/C-II has not initiated any action for preparing the self- contained note for filing of recovery suit against the amount of Rs. 1,27,97,058/- plus interest thereon outstanding against the contractor as directed by his superior officer, allowing financial advantage to the contractor, given undue favour to the contractor, indulged himself in the adverse action against the department, and which would have resulted in huge loss to the Government.
5. Therefore, the Disciplinary Authority, i.e. the President proposes to hold the charges under Article-1 as tentatively proved [as per the analysis of evidence indicated in paras 3 and para-4 {4, 4 (i) and 4
(ii)}] in disagreement with the findings of the Inquiring Authority.
6. The said Shri P.L. Gupta, Superintending Engineer (Civil) (Retd), CPWD, is hereby informed that he may submit such representation in the matter as he desires to submit. Such representation, if any, shall be submitted in writing within fifteen days of the receipt of this Memorandum, failing which it will be presumed that he has no representation to make/submit and further necessary action in the matter is liable to be taken accordingly.
7. The receipt of this Memorandum alongwith its enclosures shall be acknowledged Shri P.L. Gupta, Superintending Engineer (Civil) (Retd), CPWD. By order and in the name of the President.
Encl: Inquiry report dated 28.04.2015 in original"
21. The Disciplinary Authority i.e. Hon'ble President of India vide order dated 27.06.2017 (Annexure-A/1) impose the penalty of "withholding of 20% (twenty per cent) of the monthly pension otherwise admissible to him for a period of 04 (four) years" on Shri P. L. Gupta, Superintending Engineer (Civil), CPWD (Now 15 OA No. 2926/2017 Item No. 21/C-II retired). The Gratuity admissible to him, if not required to be withheld otherwise, may be released.
22. A letter dated 13.05.2014 (Annexure-A/5) is written by Chief Engineering BPZ B-2, to Chief Vigilance Officer, CPWD, Govt. of India, Nirman Bhawan, New Delhi on the subject of "Initiation of disciplinary action against Sh. P. L. Gupta, SE (the then EE). The same reads as under:-
"To Chief Vigilance Officer, CPWD, Govt. of India, Nirman Bhawan, New Delhi.
Sub: Initiation of disciplinary action against Sh. P. L. Gupta, SE (the then EE) Ref: Your office letter No. 10/V-11/A-24/2013-VSI dated 20.12.2013 and Even number dated 5.5.2014 Sir, With reference to your above referred letters, it is stated that a suit for recovery of compensation levied under clause-2 (plus interest) has been filed against the Contractor- M/s Bharat Construction Corporation in the Hon'ble High Court of Delhi on 26.8.2013. The Defendant has filed his counter statement on 1.3.2014 and rejoinder is to be filed by the department in the next few days. The next date of hearing is scheduled for 25.8.2014.
As regards the reply furnished by Shri. P. L. Gupta, this office is of the view that final amount recoverable from contractor can be arrived at only after the work is completed by the subsequent agency. As such the limitation period starts from the date of issue of notice to the contractor i.e. 11.09.2012 for depositing the dues recoverable from him and not from the date of imposition of compensation. Further, there seems no express provision available in the contract or in CPWD Works Manual regarding requirement of recovery suit as a follow-up action on imposition of compensation. Such actions (Arbitration/recovery suit) are practically possible only after arriving at final amount to be recovered.16 OA No. 2926/2017
Item No. 21/C-II Keeping in view the above and also the fact that a recovery suit has already been filed and the matter is before the Court of law, there is no point in carrying forward the charges against the Executive Engineer.
(S. Srivastava) Chief Engineer, BPZ B-2."
23. The applicant has worked as Executive Engineer (Civil), BPD-212 for the period from 01.06.2007 to 19.11.2009. In view of the position explained in letter dated 13.05.2014 (Annexure- A/5), the work was completed later on, therefore, the project and work relating thereto was pending for which delay happened in execution of the project. In absence of instructions on the subject, the applicant cannot remain mute spectator and abdicate his responsibility as a senior officer.
24. While arguing the case orally, the learned counsel appearing for the applicant stated that the IO has not sought compliance to Rule 14 (18) of CCS (CCA) Rule, 1965 and has merely closed the case of defense by stating that the CO does not want to present himself as defense witness and has conducted general examination of Charged Official (CO) by asking him only two questions. Rule 14 (18) of CCS (CCA) Rule, 1965 stipulates the following: -
"(18) The Inquiring Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government 17 OA No. 2926/2017 Item No. 21/C-II servant to explain any circumstances appearing in the evidence against him."
25. Learned counsel appearing for the applicant relies upon the following judgments passed by various Courts: -
(i) Hon'ble Supreme Court in Civil Appeal No. 3091 of 1995 in the case of Ministry of Finance and Another vs. S. B. Ramesh decided on 02.02.1998. Relevant portion of the same reads as under: -
"13. It is necessary to set out the portions from the order of the Tribunal which gave the reasons to come to the conclusion that the order of the Disciplinary Authority was based on no evidence and the findings were perverse. The Tribunal, after extracting in full the evidence of SW-1, the only witness examined on the side of the prosecution and after extracting also the proceedings of the Enquiry Officer dated 18.6.91 observed as follows: -
"After these proceedings on 18.6.91 on the Enquiry Officer has only received the brief from the PO and then finalised the report. This shows that the Enquiry Officer has not attempted to question the applicant on the evidence appearing against him in the proceedings dated 18.6.91. Under Sub-Rule 18 of Rule 14 of the CCS (CCA) Rules. It is incumbent on the Enquiry authority to question the officer facing the charge, broadly on the evidence appearing against him in a case where the officer does not offer himself for examination as witness. This mandatory provision of the CCS (CCA) Rules has been lost sight of by the Enquiry authority. The learned counsel for the respondents argued as the applicant did not appear in response to notice. It was not possible for the Enquiry authority to question the applicant. This argument has no force because on 18.6.91 when the inquiry was held for recording the evidence in support of 18 OA No. 2926/2017 Item No. 21/C-II the charge, even if the Enquiry officer has set the applicant ex-parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry hereafter/or even if the inquiry authority did not choose to give the applicant an opportunity to cross-examine the witness examined in support of the charge, he should have given an opportunity to the applicant to appear and then proceeded to question him under sub-rule 18 of Rule 14 of CCS (CCA) Rules. The omission to do this is a serious error committed by the enquiry authority."
(ii) Hon'ble High Court of Delhi in W.P. (C) No. 11396/2005 in the case of Union of India Vs. Mr. Lalit Kumar decided on 10.03.2011. Relevant portion of the same reads as under: -
"13. As regards the contention of compliance of Rule 14(18) of the CCS (CCA) Rules, the following examination of respondent under Rule 14(18) of the CCS (CCA) Rules has been done: -
"General Examination of Shri Lalit Kumar, EE(E), AIR Q1. The charge-sheet says that you tried to manipulate the figures in the rest report to cover up you acceptance of alternator of lesser from size. What do you have to say about it?
A. I have not tried to manipulate the figures in test report. It was a human error. This has been verified by SE(E) in 1990.
Q2. Do you have anything else to say?
A. I have performed my duty with devotion keeping in view interest of work as well as terms and conditions of agreement. I deny all the charges."It is admitted case that respondent did not examine himself as a witness. As the respondent had not examined himself as a witness, it was incumbent upon the enquiry officer to question the officer 19 OA No. 2926/2017 Item No. 21/C-II facing the charge on the evidence appearing against him in compliance of Rule 14(18) of CCS (CCA) Rules. The said rule had been enacted with a view that whatever evidence comes in the enquiry, explanation may be sought to rebut the circumstances for the purpose of enabling him to explain the same.
14. Perusal of record shows that evidence of five witnesses of department had been examined. The Enquiry Officer had not put any question to the respondent in respect of evidence against him in the enquiry proceedings. Only contents of charge sheet has been put to him. The finding of the Tribunal is as under:-
"14. Now it has to be examined whether Rule 14(18) is complied with or not? The only question as put to applicant is that as a referral to the charge sheet where applicant has been alleged to have manipulated the figures in the test report, but this is not the true import of Rule 14(18). It appears that the contents of the charge sheet have been put to applicant without any reference to the evidence and circumstances appearing against applicant during the course of disciplinary proceedings.
15. Rule 14(18) clearly provides that it is obligatory upon the enquiring authority to question the delinquent official on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances as there is no reference to the evidence brought on record or circumstances appearing against applicant the general examination which has taken place on 5.5.98 is not the valid compliance of Rule 14(18) ibid and the stand taken by the respondents is misconceived."
The Apex Court in Ministry of Finance Vs. S.B.Ramesh (supra) has upheld the finding of the Tribunal wherein the enquiry has been held to be illegal for want of non compliance of Rule 14(18) of the CCS (CCA) Rules, 1965. Learned counsel for the petitioner has not cited any judgment contrary to what has been stated above. 20 OA No. 2926/2017 Item No. 21/C-II
15. In view of the above discussion, the finding of the Tribunal that the enquiry officer has not questioned the respondent in the manner of Rule 14(18) of the CCS (CCA) Rules, 1965 on the evidence appearing against him is upheld.
In view of above discussion, the order of the Tribunal vitiating the enquiry proceedings on account of non compliance of Rule 14(18) of CCS (CCA) Rules, 1965 by not putting the evidence adduced before the Enquiry Officer in support of the three articles of charge to the charge officer vitiates the enquiry proceedings, cannot be termed to be illegal or unsustainable so as to require any interference by this court in exercise of its jurisdiction under Article 226 of the Constitution of India.
In the facts and circumstances of the case, the order of the Tribunal setting aside the punishment awarded to respondent, does not require any interference and the writ petition, is therefore, dismissed. The parties are, however, left to bear their own costs."
(iii) Hon'ble High Court of Delhi in CS (OS) 1811/2013 in the case of Govt. of NCT of Delhi Vs. M/s Bharat Construction Corporation decided on 20.11.2018. Relevant portion of the same reads as under:-
"3. It is pertinent to mention that the present suit has been filed by the plaintiff-State for recovery of Rs.2,84,74,094/- along with interest @18% per annum on the ground that the defendant did not complete the construction work of the Orthopaedic Block at the LNJP Hospital by 26 th November, 2004.
4. The defendant had filed its claims before the Arbitrator in accordance with the agreed Dispute Resolution Mechanism between the parties.21 OA No. 2926/2017
Item No. 21/C-II
5. However, the plaintiff's claim for compensation under Clause 2 of the Agreement was not referred to the Arbitrator as it was an excepted matter.
6. The Arbitrator in his award dated 27th June, 2016, has held that the plaintiff was responsible for the delay in execution of the project.
7. Learned counsel for defendant states that in view of the aforesaid finding by the learned Arbitrator, the present suit is liable to be dismissed."
26. Per contra, learned counsel for the respondents relies upon the judgment of Hon'ble Supreme Court in Civil Appeal No. 7939-7940 of 2022 in the case of Union of India and Others Vs. Subrata Nath decided on 23.11.2022. Relevant portion of the same reads as under: -
"11. Appearing for the appellants - Union of India, Ms. Aakanksha Kaul, learned counsel has argued that the impugned judgment is unsustainable for the reason that the High Court has acted as an Appellate Authority by directing reinstatement of the respondent, which runs contrary to the law laid down by the Supreme Court in B.C. Chaturvedi v. Union of India and Others 3; that the High Court while exercising the powers vested in it under judicial review, ought not to have stepped into the shoes of the Appellate Authority and reappreciated the evidence to arrive at independent findings on the evidence adduced; that no grievance was raised by the respondent that the rules of natural justice had been violated or the inquiry had not been conducted in a proper manner or that the findings arrived at by the Disciplinary Authority were based on no evidence. Learned counsel asserted that in the instant case, the inquiry was conducted by a competent officer, rules of natural justice were duly complied with and the findings arrived at by the Inquiry Officer were based on sufficient evidence. Stating that having regard to the fact that the charges against the respondent had been proved in a properly conducted departmental inquiry after giving a reasonable opportunity to the respondent to defend 22 OA No. 2926/2017 Item No. 21/C-II himself, there was no good reason for the learned Single Judge to have converted the punishment of dismissal from service imposed by the Disciplinary Authority and upheld by the Appellate Authority, to compulsory retirement and for the Division Bench to have further interfered by reassessing the evidence and directing reinstatement of the respondent in service with full back wages and only thereafter, pass a fresh order of punishment.
12. Citing the decision in State of Orissa and Others v. Bidyabhushan Mohapatra, it was contended that keeping in mind the gravity of the established misconduct, the Disciplinary Authority has the power to impose a punishment on the delinquent officer and such a punishment is not open for review by the High Court under Article 226 of the Constitution of India. It was also sought to be urged on behalf of the appellants that the past conduct of the respondent can be taken into consideration while awarding penalty, subject to the condition that the same is made a part of a separate charge, as was done in the instant case. In support of the said submission, learned counsel cited Central Industrial Security Force and Others v. Abrar Ali.
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30. Therefore, it is deemed appropriate to quash and set aside the impugned judgment and order dated 9th September, 2021 passed by the Division Bench of the High Court of Calcutta in FMA No.679 of 2019 and FMA No. 680 of 2019 and the order dated 25th June, 2018 passed by the learned Single Judge in WP No.14102 (W) of 2009, while restoring the findings and the conclusion arrived at by the Disciplinary Authority, as elaborated in the order dated 27 th November, 2008, duly upheld by the Appellate Authority, vide order dated 3rd February, 2009 and endorsed by the Revisional Authority, vide order dated 19th May, 2009. In our view, the penalty of dismissal from service imposed on the respondent is commensurate with the gross negligence and dereliction of duty on his part.
31. As a result, both the appeals preferred by the Union of India (arising out of Petitions for Special Leave to Appeal (C) Nos. 3524-25/2022) are allowed and appeals @ Petitions for Special Leave to Appeal (Civil) Nos. 11021- 23 OA No. 2926/2017
Item No. 21/C-II 22/2022 filed by the private respondent are dismissed, while leaving the parties to bear their own expenses.
27. The Inquiry Officer while examining the applicant asked the following questions: -
"General Examination of the IO:
Q.1. Do you want to say anything in your defence at this moment?
A. I will submit my defence in written brief.
Q.2. Please go through the documents at P4/1 to P4/12 wherein Shri Umesh Bansal had informed you that recovery suit in High Court of Delhi in the subject case was to be filed after obtaining approval from the competent authority. During your stay in the Division B-212 what action in regard was taken by you.
A. In this context my reply dated 31.10.2013 (Exb. D15) may please be referred."
28. In so far as compliance to rule 14 (18) of CCS (CCA) Rules, 1965 is concerned, the Enquiry Officer while carrying out general examination of the Charged Officer has asked him only two questions. Q. No. 1 is introductory question. He has invited attention of the applicant to documents P4/1 to P4/12 and asked him as to what action was undertaken by him (Charged Officer) in obtaining approval from the Competent Authority for filing recovery suit in Hon'ble High Court of Delhi. The Charged Officer (applicant) responded by saying that he has already filed his reply on 31.10.2013. The stand taken by the Charged Officer on this issue is mentioned in Para 6 to 8 of his reply dated 31.10.2013. The Enquiry Officer did not ask any further question 24 OA No. 2926/2017 Item No. 21/C-II with regard to the issued raised by the applicant. Based on above, we hold the view that Inquiry Officer did not put any question to the applicant in respect of evidence against him in the inquiry proceedings. Only details of documents have been given and the applicant has been asked a question which is not based on the deliberation of inquiry and evidence coming against the applicant in the inquiry. In the Civil Appeal No. 3091 of 1995 decided on 02.02.1998 in the case of Ministry of Finance and Another vs. S. B. Ramesh, it was held that the Inquiry Officer should give an opportunity to the applicant to appear and then proceed to question him under sub-rule (18) of Rule (14) of CCS (CCA) Rules, 1965. The omission to do so is considered as a serious error committed by the Inquiry Officer.
29. While submitting his reply in Para 6 (i), the applicant has stated that the Superintending Engineer imposed a levy of compensation to the extent of 10% of the tendered cost in respect of work executed by M/s Bharat Construction Corporation vide letter dated 11.09.2006 (Annexure-A/1). The said amount was to be paid by the agency within 15 days, failing which, the amount was to be adjusted against any sum payable to the agency under this or another contract with the Govt. or any other suitable action be taken to recover. He further states that in case no recovery is released from the contractor, the recovery suit/civil suit was required to be filed before the Hon'ble High Court of 25 OA No. 2926/2017 Item No. 21/C-II Delhi only after getting approval from the Competent Authority. He further states that period of limitation starts from the date of finalization of the bill of M/s Bharat Construction Corporation, which will only happen when the final fill of M/s Diwan Chand (3rd agency) is prepared and settled. He also states that as regards the limitation period, it did not start during his incumbency period as the work of M/s Diwan Chand was still in progress. The payment to the contractor is decided after preparation of the bill of standard bill form. He also stated that Divisional Account was of the opinion of not to file recovery suit before the Hon'ble High Court of Delhi as final amount for recovery could be ascertained only after finalization of the bills for 2nd and 3rd agencies. The second agency handled the said project is M/s Bharat Construction Corporation while third agency is M/s Diwan Chand. The applicant stated that the Chief Engineer and Superintending Engineer did not issue any written or verbal instructions for filing the recovery suit before the Hon'ble High Court of Delhi. The applicant states that it means that they were also of the same opinion. The applicant shifts blame to one Sh. Bansal, the then EE, PWD 31 who worked as Executive Engineer for the period from 11.09.2006 to 01.06.2007 i.e. for a period of 9 months and states that he did not file recovery suit and tried to prove his innocence by stating that third party was of the same opinion. The applicant 26 OA No. 2926/2017 Item No. 21/C-II concluded by saying that there is no lapse on his part in performing his duties. He puts blame on the Superintending Engineer and Chief Engineer for not reviewing the Court cases and reiterates that he has not been given any direction in the case at hand by either Superintending Engineer or Chief Engineer after such review.
30. It is clear, from the judgment of Hon'ble High Court of Delhi in CS (OS) 1811/2013 in the case of Govt. of NCT of Delhi Vs. M/s Bharat Construction Corporation decided on 20.11.2018 cited in Para 23 (iii), above that the plaintiff (Govt. of NCT of Delhi) was responsible for delay in execution of project. In para 10 of the above judgment, it is further stated as long as the findings of the arbitrator remains that defendant (M/s Bharat Construction Corporation) was not responsible for the delay, the question of the plaintiff levying liquidity damages for claiming compensation would not arise. In view of the above judgments of the Hon'ble High Court of Delhi, it is clear that delay in execution of the project happened due to the Govt. of NCT of Delhi. It has been repeatedly stressed by the applicant that the suit for recovery was to be filed only after completion of the project. This statement of applicant has also been supported by the then Chief Engineer wherein it is stated that filing of recovery suit could have been done only after the work has been completed.
27OA No. 2926/2017 Item No. 21/C-II
31. We have also gone through law laid down by the Hon'ble Supreme Court in Civil Appeal No. 3091 of 1995 in the case of Ministry of Finance and Another vs. S. B. Ramesh decided on 02.02.1998 and the judgment of Hon'ble High Court of Delhi in W.P. (C) No. 11396/2005 in the case of Union of India Vs. Mr. Lalit Kumar decided on 10.03.2011 and hold the view that the Inquiring Officer did not comply with the rule 14 (18) of the CCS (CCA) Rules, 1965 which cast obligation upon the Inquiring Authority to question the delinquent official on the circumstances appearing against him in the evidence for the purpose of enabling to explain any circumstances as there is no reference to the evidence brought on record or circumstances appearing against applicant the general examination. In this case, the Inquiry Officer did not articulate and made assessment of circumstances going against the charged officer (applicant) and to satisfy the requirement of provision in perfunctory manner by asking a question. Further, as indicated in Para 22 above and position made clear by the Chief Engineer to CVO vide letter dated 13.05.2014 (Annexure-A/5), the reasons of negligence and delay in filing suit for recovery cannot be attributed to the applicant.
32. The respondents have placed reliance on the judgment dated 23.11.2022 of the Hon'ble Supreme Court in Civil Appeal No. 7939-7940 of 2022 in the case of Union of India and Others 28 OA No. 2926/2017 Item No. 21/C-II Vs. Subrata Nath. In view of facts and circumstances peculiar to this case, we are of the view that the judgment cited above is not relevant in this case.
33. In such a situation, the charges of deliberate negligence leading to serious misconduct and in advertent negligence cannot be proved against the applicant.
34. In view of above, the present OA is allowed with the following directions:-
i. Impugned order dated 27.06.2017 (Annexure-A/1) is quashed and set aside. The respondents are directed to release the withheld amount of pension to the applicant with the interest @GPF within 8 weeks from the receipt of certified copy of this Order.
ii. The applicant shall be entitled for all consequential benefits.
iii. No order to cost. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/