Central Administrative Tribunal - Delhi
Shri Subhash Chand Garg Son Of Late ... vs Delhi Development Authority on 14 February, 2008
ORDER
M. Ramachandran, J. (Vice Chairman)
1. The applicant is working as Assistant Accounts Officer, under the Delhi Development Authority, respondents herein. Disciplinary proceedings were initiated against him, on the basis of a Memorandum (Annexure P-5) dated 10.1.1995. It may be necessary to note the nature of the charges, and it will be relevant to quote the allegations as below:
A scrutiny of the records relating to the above works had shown that there has been serious violation of codal formalities and procedural requirements in the matter of preparation sale and issue of tender documents relating to the above stated works. Specifically stated, the following deficiencies/infirmities have been noted:
(a) In r/o works mentioned at S.No.(i) to (iv) above, tender papers issued to various contractors contained only two pages of tender form PWD-7 instead of containing complete set of PWD-6 & 7. Thus the tender documents sold and received did not contain the contract conditions.
(b) The sale of tenders for works stated at S.No. (i) to (iv) was to be stopped on 5.3.90 but from the tender papers available in the file, it is seen that tenders were sold to M/s Shree Ram Traders & Contractors on 7.3.90 in r/o works stated at S.No. (i) to (ii). Similarly in r/o work stated at S.No. (iii), tender papers were sold to M/s Kumar Constn. Co on 7.3.90. From the tenders available in the file it is also seen that tenders were sold on 7/3/90 to M/s Roshan Lal Vohra and Sons in r/o works stated at S.No. (i) to (iv) which are lying in the file unfilled i.e. the tender papers were not handed over to them and they could not submit the tenders.
In short, in all the four works in question, the following irregularities have been committed by Shri S.C. Garg:
Non - issue of complete tender documents to the contractors. . Sale of tenders after the last date of sale of tenders. Non handing over of tenders to the contractors.
As the Divisional Accountant concerned, it was the duty of Shri S. C. Garg to bring to the notice of his Executive Engineer, the above deficiencies/infirmities and to advise him to have the same rectified, which the C.O. has failed to discharge his duties in this regard.
2. Although the applicant's case is that initially allegation served on the basis of report was different, since the enquiry had been held on the lapses as elucidated above nothing much turns upon the above objection.
3. The penalty advised is Annexure P-10 and he has been subjected to reduction of pay by three stages in the time scale for three years with cumulative effect. This would adversely effect his eligibility for future increments as well. It is submitted that the appeal filed had been rejected, and a Writ Petition came to be filed on this background.
4. Ms. S. Chatterjee, Learned Counsel for applicant submits that the charge-sheet itself was misconceived. Enquiry has been held without adhering to the principles of natural justice. The enquiry officer was biased and the report was one sided and did not take notice of the real fact, which had been placed on record. The appellate authority's order was also mechanical in its content. The allegation have no factual basis, and proceedings were initiated only by way of a formality. Action was belated and all these aspects had been lost sight of. The punishment also was harsh.
5. By way of counter reply, the respondents have controverted the contentions as above. Restrictive practices were mounting in the establishment and when Vigilance found that this has to be properly curbed, prompt action has been taken and it could not have been possible to contend they were belated. Enquiry was held properly by an independent, knowledgeable person who was well experienced, and the punishment could not have been possible to be characterized or unwarranted or excessive.
6. The criticism about the bias of the enquiry officer is not substantiated . Therefore, we may straightaway go to the report of the Enquiry Officer as serious objections has been raised in the manner in which this has been drawn up. The Enquiry Officer had recorded after the scrutiny of the records relating to the works that tender papers were issued to various contractors containing two pages of tender form (PWD-7) instead of complete set of PWD-6 and 7. Thus the tender documents did not contain entire contract conditions. In respect of the allegation pertaining to sale of tenders beyond the stipulated hours, he had recorded the finding that although the sale register has shown that the sale of tenders have been stopped, still perusal of tender papers showed that tenders were issued to two companies on 7.3.1990. The documents indicated that tender papers were sold on 7.3.1990. In respect of one limb of the allegation, he had found that tenders were sold on 7.3.1990 to M/s Roshan Lal Vohra and Sons, but the same were lying in the file unfilled and obviously tender papers were not handed over to intending contractor. This led to a further finding that they could not submit the tenders.
7. Ms. Chatterjee points out that this was, in fact a finding, which had no basic contents to show presence of irregularities. Especially she had invited our attention to the evidence that had been got adduced through the prosecution witness themselves. PW -1, had stated that two page tender documents in lieu of PWD-6 and 7 were being issued as a matter of course in respect of minor works and it was a common procedure in all the divisions of the Department. All the works commented upon and concerned were minor works whose estimated cost was below Rupees two lack. We notice that the PW 1 had unambiguously stated that the tender documents were issued in the same manner in the various divisions in the Department in the years 1987, 1988, 1989, 1990 and 1991. This evidence of the practice followed was relevant, and it should have been noticed. But according to Counsel it has been completed brushed aside.
8. We find that submissions as above are tenable. When over a long period, a course of conduct is adopted by the Department for issuing tender documents, it was unfair to suggest that in one or two cases, strict rules had not been complied with. Of course, it would have been possible for us to appreciate the standards attempted to be upheld by the department, if it was a case when because of the lapse, the claim of the department were in any manner prejudiced or disability had resulted. But that is not the case suggested at all. The allegations were therefore, too technical, and in sufficient to become the basis of a serious charge.
9. An enquiry officer is expected to refer to the materials that is placed before him and he will have to reject or accept any version or the relevancy of documents or material. Only by such discretion a third person including the courts to conclude that consideration of all materials have been there. That is not the case now. The report does not even refer to the evidence of prosecution that a relaxed practice was being followed from year to year. Therefore, we cannot endorse the finding of the enquiry officer. The accusing finger has been raised without appreciating essential background of the case, and he has proceeded as if it is his duty to enter finding as against the officer. If he had at least adverted to the evidence, and entered a finding, the field would have been out of bound for us. But the omission is glaring.
10. The same if not more confounded approach, the Counsel points out, is there in respect of the other charge as well. The allegation was that there was sale of tender documents after the prescribed last date. But documents on record include the cash book of 5.3.1990. As per the tender sale register (exhibit P-5), no tender form was sold after the last date. This had been confirmed by PW-1 in his oral evidence as well. The possible conclusion is that the tender forms might have been purchased but not taken away by intending tenderer. He did not turn up to collect the same for his own reason but that cannot be a reason for alleging that there was a sale after the dead line. The finding is contrary to the direct and distinct evidence on record. We have to notice that enquiry officer, had been unduly harsh in his finding.
11. There was no sale, after the final date, and it cannot be considered that the sale is completed only at the point when the tender documents were taken away from the office. As far as the department is concerned the sale should be deemed as complete when money is accepted, and the tender forms are earmarked for supply and appropriate entries in the register are made.
12. We can also visualise a situation, that perhaps the applicant could have played a game and as a matter of fact in spite of the sale tenders were held back. But a complaint in that manner has to come from the intending tenderers alone. Therefore, the findings are clearly perverse.
13. The 3rd allegation also cannot be considered as lapse on the part of the official concerned. Tender forms, in spite of purchase had not been collected by intending tenderer and were remaining unfilled. Here also, the evidence supplied in the enquiry by PW-1 was that there was no practice in DDA to send tender forms to the intending tenderers through dak. He had, therefore, confessed that there was no alternative and the course of action available is but to keep the un collected documents in the concerned files. Here also there is no allegation from the person concerned that officer had deliberately withheld the documents in spite of his request. So much so this cannot amount to a conduct, which is actionable. The fault committed by the enquiry officer is that in spite of such evidence, he had not referred to any of them in his report.
14. Of course, we may note 'twhat perhaps DDA was worried that very few tenders had come and there was no competition in the concerned works. Perhaps this might have been resulted by contribution of officers of the DDA. But suspicion alone cannot take the place of proof. We may also notice that there is nothing to show that applicant was directly involved with the transactions since the enquiry officer has concluded his findings, as following:
As a Divisional Account, it was the duty of Sh.S.C.Garg, CO to bring to the notice of his EE the deficiencies in the matter of issue of tender documents and Shri S.C.Garg /CO has clearly failed to discharge his duties.
It may also indicate that there was supervisory lapse alone and not direct involvement in any of the cases.
15. We have to observe that the findings were imperfect. No punishment could have been possible to be imposed in the circumstances.
16. We set aside the penalty advice as also the appellate order (Annexure P-12) as a proper enquiry and report has not preceded the proceedings. The officer is to be acquitted of all blames. The amount, if any, withheld are to be paid to the applicant forthwith and appropriately follow up orders are to be passed by the respondents. This should be done within one month from the date of receipt of a copy of this order. There shall be no order as to costs.