Central Administrative Tribunal - Delhi
Ravikant vs Union Of India Through on 24 April, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4192/2013
Reserved on : 16.04.2015.
Pronounced on :24.04.2015.
Honble Mr. Shekhar Agarwal, Member (A)
Honble sh. Raj Vir Sharma, Member (J)
Ravikant,
S/o Sh. Magan Lal,
Presently Posted as
General Manager (CS-CFA)
BSNL Corp. Office
Janpath, New Delhi-29. Applicant
(through Sh. Fazal Ahmad, Advocate)
Versus
1. Union of India through
Secretary,
Ministry of Communication
and Information Technology,
Department of Telecommunication,
Room No. 1010, Sanchar Bhawan,
20, Ashoka Road, Sought Block,
New Delhi.
2. Chairman cum Managing Director,
Bharat Sanchar Nigam Ltd.
(Govt. of India Undertaking)
Sanchar Bhawan,
20, Ashoka Road,
South Block, New Delhi. .. Respondents
(through Sh. B.L. Wanchoo and Sh. Pradeep Kumar Mathur, Advocates)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant was working as General Manager Telecom District, Hamirpur (HP) during the period 20.10.2000 to 30.10.2001. On 31.08.2009, he was served with a charge sheet containing the following two Articles of Charge:-
Article-I That the said Shri Ravi Kant while functioning as GMTD w.e.f. 20.10.2000 to 29.10.2001 in Hamirpur SSA, Himachal Pradesh Telecom Circle committed serious irregularities in procurement of 0+8 Digital Pair Gain System(DPGS) in large quantities from a private firm through ITI Ltd., Delhi.
The said Shri Ravi Kant was Head of the SSA which initiated, processed and placed POs and issued Sanction Memos for procurement of 0+8 DPGS without competency. The following purchase orders /sanction memos have been found to be placed /issued with the approval of Shri Ravi Kant, GMTD, Hamirpur, SSA:
Sl.
No. Sanction Order/Purchase order No. Date of the sanction/purchase order Amount Involved
1. CS-89/26 05.10.2001 4,81,651/-
2. CS-89/19 08.10.2001 9,63.302/-
3. CS-89/30 09.10.2001 4,81,651/-
4. CS-89/31 10.10.2001 9,63,302/-
5. CS-98/SDOT/BLP/20 12.10.2001 10,78,899/-
6. CS-89/SDOT/UNA/27 12.10.2001 5,39,449/-
7. CS-89/SDOT/HMR/32 15.10.2001 5,39,449/-
8. CS-89/SDOT/HMT/33 15.10.2001 10,78,899/-
Total Amount 61,26,602/-
Against all the above mentioned Purchase Orders/Sanction Memos issued during the tenure of the said Shri Ravi Kant, GMTD, Hamirpur SSA, Himachal Pradesh Telecom Circle, purchases have been made by the SSA without competency, without floating any tender, in utter violation of extant instructions of the Department of Telecommunications and BSNL Head Quarters issued from time to time for procurement of such items.
The said Shri Ravi Kant was supposed to act as per the instructions issued from time to time by BSNL HQ, Deptt. Of Telecom and General Financial Rules in connection w3ith procurement of 0+8 DPGS which was a decentralized item. However, he acted without competency and failed to perform his official duties properly which resulted in huge unlawful expenditure and misuse and loss of public money.
Thus, by his above acts, the said Shri Ravi Kant committed grave misconduct, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant thereby contravening Rule 3(1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
Article II This files relating to the purchase of the said 0+8 DGPS during the year 2001-02 have been found misplaced/lost and the files could not be traced during the investigation. It is evident from the circumstances of the case that the said files have been lost /misplaced intentionally, in collusion with other officers/officials with an ulterior motive to avoid any action against the illegal and unlawful procurement of the said DGPS in the SSA. Shri Ravi Kant, the then GMTD, Hamirpur, also failed to give rightful and lawful directions to his subordinate officers/staff in procurement of 0+8 DPGS during the relevant period. As such, Shri Ravi Kant is responsible for supervisory lapses.
Thus, by his above, acts, the said Shri Ravi Kant committed grave misconduct, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant thereby contravening Rule 3(1) (i), (ii), (iii) and 3(2)(i) of the CCS(Conduct Rules), 1964.
Further, vide corrigendum dated 26th March, 2010, the number of POs /Sanctioned memos and corresponding value as mentioned in Article-I above was amended as instead of 8 Pos/Sanctioned memos amounting to Rs.61,26,602/- read 4 Pos/Sanctioned Memos amounting to Rs.32,36,696/-.
2. The applicant denied the charges and an enquiry was conducted. The Enquiry Officer (EO) submitted his report on 27.12.2010 in which he found both the charges to be not proved. The respondents after consultation with CVC issued a disagreement note against the findings of the enquiry report as far as Article-I of the charge was concerned. EOs finding regarding Article-2 of the charge was accepted. After considering the reply of the applicant thereon the respondents passed the impugned order dated 05.03.2013 by which penalty of reduction to a lower stage in time scale of pay by one stage for a period of one year without cumulative effect and not adversely affecting his pension was imposed on the applicant. This order was issued by the Disciplinary Authority (DA) who happened to be the President in this case. Even though no statutory appeal could be made against the order of the President, the applicant submitted a representation against the same on 30.04.2013 and followed it with a reminder on 29.07.2013. However, the respondents did not reply to the same. He has now filed this O.A. before us seeking the following relief:-
(a) Order the quashing of the impugned order dated 05.03.2013 passed by Department of Telecommunication imposing penalty on the applicant.
(b)Direct the department to dispose of the representation of applicant dated 30.04.2013 and its reminder dated 29.07.2013.
(c)Direct the Department of Telecommunication to include the name of the Applicant in the list of Non-function up-gradation of officer in HAG of the ITS Group A w.e.f. 7.08.2013 as released by BSNL vide letter no. 315-09/2013-Pers-I dated 24.05.2013 as per DOT Order No. 317-01/2012-STG-III dated 24.05.2013; and
(d)Pass any such further order or direction as may be deemed fit, proper and necessary in the interest of justice.
3. The contention of the applicant is that the penalty imposed on him was not in accordance with the material available on record. It was arbitrary, mala fide and a result of high handedness on the part of the department. It was also in complete violation of Article-311(2)(B) of the Constitution of India. He has alleged that the entire process was initiated after a lapse of more than eight years even when the files of the relevant period were not traceable.
3.1 Applicant has further contended that the charge against him concerned purchase of a component called 0+8 DPGS through which eight telephone lines can be given by putting on a single pair of line. This item was not part of any centralized as well as decentralized list. Therefore, to tide over the surge of the huge demand on account of landline connection at that time, the applicant like other prudent officers of BSNL placed order of this component with Government of India PSU, namely, Indian Telephone Industry (ITI). A proprietary certificate was also issued by ITI which foreclosed entire scope of tendering or bidding as per established norms. The department had nominated one of the senior most officers of the rank of Executive Director of BSNL to conduct enquiry against the applicant. The EO in his report found both the Articles of charge not to be proved.
3.2 The applicant has gone on to say that it was incorrect to allege that he purchased this component from a private entity through ITI as this was done on the basis of proprietary certificate issued by ITI. It was also incorrect to draw an inference that 0+8 DPGS component would automatically be part of decentralized list.
3.3 The applicant has stated that the charge sheet itself was issued after a lapse of eight years. Thereafter, the respondents issued a corrigendum seven months after issue of the charge sheet in which also there were certain discrepancies in the amount involved in the purchase. This clearly shows that no proper investigation was carried out by the department even after a lapse of nine to ten years. The charge against the applicant has been made on the basis of incorrect facts, distorted witness version and arbitrary inferences have been drawn with complete lack of objectivity.
3.4 According to the applicant, he was covered by Circular No. 6-15/2000-EB dated 23.11.2000 of BSNL which authorized him to make purchases amounting to Rs. 10 lacs of any non-stock item from any PSU at any given occasion. In the instant case, the applicant made purchases due to an emergent situation of high demand of the landline connections.
3.5 The applicant has further alleged that DA has committed legal and technical mistakes in its zeal to indict the applicant. Even the statement of Sr. Accounts Officer was erroneously relied upon by the DA. The DA failed to observe principles of natural justice. The disagreement note was prepared and referred to UPSC without taking the comments of the applicant thereon. It was only at the instance of UPSC that his comments were sought. Thus, the entire exercise of disciplinary proceedings smacked of arbitrariness and mala fide in law.
3.6 Even the CVO, BSNL has admitted that 0+8 DPGS was not on the list of decentralized item. As such, the case of the applicant has to be dealt with as per actual available facts.
3.7 The applicant has further stated that the respondents served the charge sheet after more than eight years vide Memo dated 31.08.2009 mentioning therein that the purchases were made in the year 2001, such whimsical action of the respondents after a gap of 12 years was illogical and arbitrary.
3.8 The applicant has stated that pan India including Himachal Pradesh Telecom Circle similar procedure for procurement was followed at different places. Yet, no enquiry was held there. It was only the applicant, who was subjected to these proceedings. The issue of splitting was not part of the charge sheet but was introduced in the disagreement note. Actually all the purchases were made on different dates as mentioned in the purchase order and this issue was an afterthought. On the basis of these averments, the applicant has prayed that his O.A. be allowed.
4. Respondents No.1 and 2 have filed their replies in which they have disputed the averments made by the applicant. In the reply filed by respondent No.1, it is stated that the applicant has been found guilty of serious charges, which were noticed during departmental investigation. The departmental proceedings were held as per prescribed procedure in accordance with the Statutory Rules. Thus, there is no reason for this Tribunal to interfere in the same. The respondent No.1 has further stated that in various judgments Honble Supreme Court as well as Honble High Courts have held that while exercising the power of judicial review, this Tribunal cannot act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. The respondents have relied on the judgment of Honble Supreme Court in the case of State Bank of India Vs. Samarendra Kishore Endlow, (1994) 2 SCC 537 in which it was held that imposition of proper punishment is within the discretion and judgment of the DA and it was not open to Honble High Courts or Tribunals to interfere in the same. Further, relying on the Apex Courts judgment in the case of Chief of Army Staff Vs. Major Dharam Pal Kukrety, (1985) 2 SCC 412, the respondents have stated that this Tribunal was not entitled to go into the merits of the charge/allegations levelled against the delinquent. The respondents have thus prayed that this O.A. be dismissed.
5. We have heard both sides and perused the material placed on record. The first ground taken by the applicant is that the charge sheet has been issued to him after a lapse of more than eight years. Thus, on the ground of delay, he has prayed that the entire proceedings be quashed. From the material presented, we notice that the charge sheet was issued to the applicant on 31.08.2009 and pertained to purchases made by him during the period 20.10.2000 to 29.10.2001. Thus, it cannot be denied that there had been considerable delay in issue of charge sheet and completion of proceedings as alleged by the applicant. However, the applicant has not clarified as to how this delay has been prejudicial to his defence. Honble Supreme Court in the case Government of A.P. Vs. V. Appala Swamy, (2007) 14 SCC 49, in Para-12 has held as follows:-
12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its our facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the lapse on the part of the employee; (2) where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry officer. 5.1 The respondents also have not given any explanation for delay. Thus, in terms of the aforesaid judgments, it was open to the applicant to take the ground of delay before the EO stating therein how such a delay had caused prejudice to his case. It is not open for this Tribunal to quash the proceedings merely on this ground in terms of this judgment.
5.2 Again in the case of Chairman, LIC of India & Ors. Vs. A. Masilamani, JT 2012(11) SC 533 Honble Supreme Court in Para 10.2 has held as follows:-
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250). 5.3 In this case, we notice that the charge against the applicant was grave involving financial irregularities and causing huge loss to BSNL. We, therefore, come to the conclusion that it would not be in the interest of honest and clean administration to quash these proceedings merely on the ground of delay.
6. We have gone through the other grounds taken by the applicant as mentioned in the earlier part of the judgment.
6.1 The applicant has stated that the EO was a very senior officer of the rank of Executive Director of BSNL and he has exonerated him in the enquiry. There was, therefore, no reason to disagree with the EO. We are not inclined to agree with the applicant in this regard. It is prescribed under the Rules that the DA has a right to disagree with the findings of the EO and he could do so by issuing a disagreement note giving tentative reasons for disagreement. Thereafter, the delinquent has an opportunity to give his comments on the same. In this case, prescribed procedure has been followed. Thus, we cannot fault the respondents in their action on this count.
6.2 Further, the applicants explanation was that the component 0+8 DPGS was neither in any centralized list or decentralized list and was, therefore, open for purchase at his level. However, the DA has not accepted this explanation and taken the view that since 0+8 DPGS was more sophisticated component than 0+4 DPGS which was in decentralized list, the applicant was not competent to purchase 0+8 DPGS at his level. Further, while the applicant has stated that the purchase of 0+8 DPGS was made from ITI, the stand of the respondents was that ITI itself was not manufacturing this component and supplied it by procuring the same from M/s S.M. Creative, Gurgaon after adding their own 10% commission. Thus, not only purchase was not made at a reasonable rate but BSNL suffered further loss due to addition of 10% commission of ITI in the price charged from BSNL. Applicant has not cited any document to establish that the respondents were wrong.
6.3 The applicant has also stated that the statement of Sr. Accounts Officer was erroneously relied upon by the DA. He has not given any reasons to support this contention. On the other hand, the DA has observed that Sr. Accounts Officer has given a statement that he had objected this purchase by the applicant by giving hundred percent advance. Even then, the applicant still went ahead with the purchase. We see no reason to disagree with this finding.
6.4 The applicant has stated that splitting of orders was not part of the charge sheet and had been introduced in the disagreement note. We do not find this explanation to be very convincing as the main charge sheet itself mentions the different dates in short span of time on which the orders were placed. The splitting of orders is evident from the same. Further the contention of the applicant is that as per existing instructions of BSNL he was authorized to make purchases upto Rs.10 lacs from PSU at any given time and therefore there was nothing wrong with purchase of 0+8 DPGS. Even this explanation of the applicant is not satisfactory. As has been mentioned above, the applicant split the orders to bring it within the limit of Rs.10 lacs. In any case, this item was not being made from M/s ITI themselves and therefore there was no reason to purchase it from them. The applicant has also contended that M/s ITI has issued a proprietary certificate and purchase was made on the basis of the same. The view expressed by the respondents is that M/s ITI was not making this component and the applicant should have verified the proprietary certificate as per existing instructions of BSNL. We find merit in this contention of the respondents.
6.5 In our opinion none of the grounds taken by the applicant are such as would warrant interference by this Tribunal in the action taken by the respondents. This is because it is trite law that in judicial review it is the decision making process that is to be looked into by the Courts and it is not open to this Tribunal to act as an Appellate Authority, reappraise the evidence and substitute the judgment of the DA with its own. The applicant has not alleged any procedural violation or violation of principles of natural justice leading to denial of reasonable opportunity to him to submit his defence. He has also not alleged that the findings of the DA were perverse nor has he alleged that this was a case of no evidence. Under these circumstances, we do not find any reason to interfere in these proceedings. The O.A. is, therefore, dismissed. No costs.
(Raj Vir Sharma ) (Shekhar Agarwal) Member (J) Member (A) /Vinita/