Central Administrative Tribunal - Mumbai
Anil Ramdas Pawar vs M/O Communications on 18 July, 2023
OA No 2168/3043 Central Administrative Tribunal! Maunrbai Beneb, C Camp at Nagpur 3 Reserved on 21° of June, 202 Pronuunced on (4 ef July, 2023 Hon'ble Mrs. Harvinder Kaur Oberoi, Member J) Hon'ble Mr. Shri Krishna, Member (4) Am} Ramdas Pawar, aged about 38 years, Occ. Presently working as Assistant General Manager, Telecom Department, Amravati, Ro BSNL Otr Jay Stambh, Amravati. oo. Appheant Or S.A. Marathe, Advocate} Versus 1. Union of India, Through Secretary for Ministry of Communications and Information Technolusy, Department of Telecommunications 915 Sanchar Bhavan, 20-Ashoka Road, New Delhi-] 10066. bo . Chief General Manager, Meharashtra Telecom Circle, Mumbai, Sok: Usion Public Service Commission, Through ils Seerelany, Oholpur House, Shahajan Road, New Delhi} 1066. . Respondents Mr. B.D. Pandit for i & Sand Ms. Usha Tannsfor R-2, Advocates) fxd OA NG 28 20TS ORDER
Mrs. Harvinder Kaur Oberoi, Member (J):-
The applicant, who is working as Assistant General Manager, Telecom Department, Amravatl under Respondent No.2, approached this yibunal under Section 19 of the Administrative Tribunals Act, 1985, aggrieved by imposition of penalty of reduction in time scale.and withholding of three increments, in a disciplinary proceedings. The following reliets are souaeht in this O.A.-
(). Quash and set aside the impugned order dated 22/08/2008 of impasing punishment of reduction by 3 stages in time scale of pay for a period of 3 years with further direction that, he will not earn any increment during the period of such reduction and on expiry of such period the reduction will have effect of postponing his further increment of pay. (Annexure No. A-1@).
i). Quash and set aside the communication of 4 P.S.C. Dated 07/05/2008 referred to respondent nol.
(iif). Hold and declare that, the applicant is not auilty of alleged imputation of misconduct in Memo dated 17.07.2003 and accordingly, direct the respondent to give applicant all service benefits including restoration of pay, increments, promotion with retrospective effects, Se Grant identical relief as granted to Mr.ALP, Bhat (Convener of TEC) by Honourable Central Administrative Tribunal at Bangalore to him in O.A.No.356/08 and upheld by Honourable Karnataka High Court in WUP.84 70/2007, snRNA had.
OA No ST GBS 1S ivy}. By an mterim order direet the respondents to consider applicant's claim for promotion in the next Departmental Promotion Committee.
_ ivi}. Grant any Gey relief wi ie this Hon'ble Coun may deem ft and proper in the facts and ciroumstances o SE th aes | in the Ae of yustics."
. ee A gh ¢
2. This OA has been fled by the applicant on 19°" Sep, 2013 and Wes dismissed on the ground of delay vide this Tribunal's dan, 2018 The applicant then approached the Hon'ble Hiek Court of Judicature at Bombay, Nagpur Bench, Nagpur by way of WP No.6285 of 2018 calling in question the orderjudement of this Tribunal dated 19" Sep, 2013 and the Hon'ble High Court, vide its judement dated 04" March, 2020 s pleased to set aside the said orderfudement of the Tribunal "26. Therefore, 3 hyper technical view -- of mathematical approach in such matters on above peculiar [acts is - nothing, but, denial of justice. Therefore, in peculiar # ines we hold that this is a fit case to condone the delay and provide an opportunity to he petitioner tp test his case on merits. In the irctunstances, for the reasons recorded above, the impugned order passed in MA No.2145/2013 in OA No.2iee/20l3, Gy the Central Administrative T ribunal Muy cabal Bench, Capt at Nagpur (CAT), on 19.01.2018, is unsustaine able, hence the same. is quashed and set aside. The delay is condoned and the Central Administtalive Tribunal is directed to proceed further in accordance with how", rhe.
Seat Thus, in view of the above directions of the Hon*ble High Court, when the matter was taken up for hearing on 19.06.2023, counsel for the applicant submitted that in the present case, the ppenaay:
4.
OA No tis 213 applicant was part of the three members tender evaluation committee, All the three members of the committee were charged departmentally and were ultimately punished. The other two members ic one Shri Bhatt and Shri Nair had separately approached the Bangalore Bench and Ernakulam Bench of this Tribunal wherein they achieved same success and which orders of the Tribunal « 'e upheld by the High Court and ultimately the w we have besn completely exonerated. H le submitted that his case is similar to the above two cases and claims parity.
Brief facts as submitted by the applicant are that in the year 2000, tenders were invited for supply, installation, testing and commissioning of 11 PVRS systems for handling 20,000 to 30,000 lines at Ahmednagar Telecom district. The Tender Evaluation Committes (TEC) comprised Shri A.P. Bhat, Deputy General Manager (DGM), Shri NUK.S. Nair, Chief Accounts Officer and the applicant Shri AJR. Pawar, Assistant General Manager, all of them from Ahmednagar Telecom District. The condition was that the bidder should have experience of completing at least 03 works of similar nature and magnitude during the last three years. The three bidders namely- M/s ECIL, M/s Bay Talkitec (P) Lid. And Mis Compu shop submitted their tender. All the three tenders were initially found to be administratively and technically acceptable. The TEC while evaluating the financial bid, rejected the tender of Mis ECHL giving reason of it having no credential/experience, The rate offered by M/s ECIL was Rs.5.33,720/- for capacity of 20,000 line and Rs.5.43,720/- for capacity of 30,000 lines, The tender of M's Bay Yalkitec (P) Lid.
SERN SS SS SSS Which had in ee technology quoted rate of Rs.12,35.0004. As Mis ECHL had ne ee ts bid got 032 NO SERSAIA & Ree ear ae Reece: Sasa epg ees Yosef rejected and the second oe af Ms Bay Talkitee (PB) Lid.
was recommended by the TEC.
Sear 4.1 he Chief General Mana: aber approved the recommendation of the TEC and directed t) issue purchase order. It is submitted that the applicant had objected to granting exemption, by the General Manager to Ms Bay Talknee (P) Lid. from payment of security deposit. He also kept pure SHase - order in abeyance tl [4.11.2000. On discussion with Chief ¢ aeneral Manager, Genera! 4 Manager ordered to withdraw the lener of keeping purchase order os mo abeyance, Accordingly, the applicant issued the purchase order to M/s Bay Talkitee (P) Lid.
42 On 17.07.2003, a charge sheet came to be issued te all the ys three members of the TEC alleging irr ob cularity In recommending second lowest tender of M/s Bay Talkitec (P) Lid. and rejecting lowest tender M's ECTL. on untenable grounds. Rh was alleged violation of Rule 429 of P&T Manual Vol Tl and Rule 60 of P&T, FAB Voll ty $3 Yhe statement of Article of Char, we against the applicant, Mr, ALR. Pawar (page 36 of the pleadings) is as follows:
"That the said Shri ALR. Pawar, ae functioning as Assistant General Manage (A&P) Assistant General Manager om Ofo General Manager, Ahmednagar Telecom District, during the p the Tende oe pe eriod 1899-2000. and as a "Member of + Evaluation Committee, im peularly em The article of charge against S 6 OA Na?
recommended the acceptance of the second lowest tender of M/s Bay Talkitec (P) Ltd. for the work of Supply, Installation, Testing and Commissioning of Interactive Voice Response Systenis, and rejection of the lowest tender of M/s ECIL on untenable grounds in grass violation inter alla of Rule 429 of P&T Manual Volume-{f and Kule 60 of P&T Pmancial Handbook Volume-[, which [ed to placement of Purchase Order on M/s Bay Talkitec (P} Lid. at exorbitant rates: thereby causing undue pecuniary advaniage of Rs.55,80,240/+to the said firm and corresponding less to the Government.
ss 2 Thus, by his above acts, the said Shn ALR. Pawar committed grave misconduct, falled to maintain absolute integrity and devotion to duty, and acted In a manner unbecoming of a Government Servant, thereby contravening Rule 31 MD, GY and Gil) of the CCS (Canduct) Rules, 1964, By order and in the name of the President".
members of the TEC is as follows:
"That the said Shri A.P. Bhat, while functioning as Deputy General Manager (HQD, Ofo General Manager, Ahmednagar Telecornn District, during the period 1999-2000. and as a Member of the TEC, irregularly recommended the acceptance of the second lowest tender of M/s Bay Talkitec (P) Ltd. For the work of Supply, Installation, Testing and Commissioning of Interactive Voice Respond se Systems, and rejection of the lowest orde of Ms BCIL on untenable grounds, in gross olation | inter alia of Rule 429 of P & T Manual Volume-I and Rule 60 of P&T Financial Handbook Volume-l, which led to placement of Purchase Order on M/s Bay Talkitec (P)} Limited at exorbitant rates; thereby << (GB/2043 Shri A.P. Bhat, ane of the three AN NV << ~ WO OA Ne 21883 causing undue pecuniary advantage -- of Rs.55,§ 80, Dear ~to ie © gaid firm and corresponding 2, 'Thus, by the above acts, the said Mr ALP.
oS Shat committed grave miscanduct, failed te maintain absolute integrity and devotion to duty, and acted In a manner unbecoming of a Government Ser vant, thereby conlravening au e 3(1)G), GD and Gi} of the CCS (Conduct) Rules, 1964".
And the article of charge against Shri N.K Sukurnaran Nair, one | af the three members of the TEC is as follows:
"That the said, Shu. NK. Sukumaran Nair, while functioning as Chief Accounts Officer, Deputy General Manager. Ahmednagar Telecom District, during the year 2000, and as Member of ue Vendor Evaluation Committee, irregularly recommended the accemtance of the second lowest tender of Mis Bay Yalkitec(P) testing and Lid For the work of Supply, Installation, testing and commissioning of Interactive Voice Response Systems, and rejection of the lowest tender of MVs ECIL on untenable grounds, in gross violation inter alia of Rule 429 of P&T Manual Volume-ll and Rule 60 of P&T Financial Handbook Volume-l; which led to placement of Purchase Order on Mis Bay Talkites
(f) Lid. at exorbitant rates: thereby causing undue pecuniary advantage of Rs. S5,240/-to the said firm and corresponding loss to the gay ermment.
z ae by his above acts, the said Shri NR Sukumaran Nair committed EraAve misconduet, fa 'led to maintain absolute integrity and devotion to duty, and acted in a manner and in unbecoming of a Government servant, thereby contravening Rule a tras Spee, er one te.
OA Noetas'cer3 2 3€19G}), GY and GU) of the CCS(Conduct) Rules, 1964".
S. Thus similar charges. were levelled against all members of the TEC. pepe ial enquiry was initiated and applicant participated in the same. However, he was found guilty of the charge and penalty of reduction by 3 stages in the time scale of pay for a period of 3 years and withholding of increments with further effect of postponing his future increments of pay is imposed by the Disciplinary Authority vide order dated 22.08.2005 [Annexure A-1()]. The applicant preferred Review Petition before Respondent No.l against aforesaid order. Wowever, the same was dismissed vide order dated 07.05.2008 fAnnexure A-1U}].
6. Applicant submits that Shri A-P. Bhat, Convenor of TEC was also charge-sheeted and the order passed by the Disciplinary Authority has been challenged before C.A.T., Bangalore Bench. It was held by the Tribunal that TEC acted bonafide in accepting the tender of M's.Bay Talkites Pvt. Ltd. and consequently justifie rejection of tender of M/s ECIL vide order dated 24.11.2006. Ttis stated that this order has been upheld by the Hon'ble High Court of Kamataka vide judgment and order dated 13.10.2011 on appeal by the respondents. The applicant being similarly placed person and same charge has a levelled against him, he is entitled to the similar relief and hence the present O.A. is filed.
7. ly is stated that the applicant and Shri AP. Bhat were members of the Tender Eva uation Coammittes. While the former is exonerated from the charge, the applicant is punished for the -
--- Gee OA MABTGR E013 same offence, As such, he is entitled to the same relief and hence the present O.A. is file & ye * 3 hav Pe eee - hye eT Seyet merieet ec 8, The respondents have {led reply to the OLA. and denied all Sy Aan Gk Fae ete me AR & vbimiceian TESS a es se dS INS AGVELSE avermenis anc contentions made therein. They submit that as per the Hnodings of the Inquiry Officer, the applicant's recommendation as a member of TEC led to place of purchase order on M/s Bayialkites at exorbitant rates thereby causing undus pecumiary advantage of Ks.58.80,240- to the said firm and corresponding loss to the government. The cast of Rs. 12,35,000/- per sysiem was an unreasonably huge cost as compared to the lowest offer of M/s ECTL and even as compared to the estimated prepared by the department, The applicant without any recorded reasons in the TEC rejected the tender of M/s ECIL and accepted TRE rates of M/s Baytalkitee without evalugting the reasonableness boge of rates and without making any effort to bring down the prices ta ihe offer af M/s ECIL In the absence of any evidence, itis difficult tO accept t the Charged Offloers contention that he was overruled oy the other lwo members of TEC. Although he claims that there were manipulations } inthe first TEC report, yet he has willinely signed the second TEC report.
y, They further submit that the applicant was given Adl opportunity by the Inquiry Officer to defend himself during the course of inquiry. All the points raised by him and all the evidence nraduced by him mm his defense wa eval ated by the Inquiry . Officer. Inquiry Officer in his report has stated that as per the charged officer, the technical evaluation sheet was put up to the coadstine of Shri A.B. Bhat, DGM(Hars.) as convener, Q Soeeet Re : Bee : CR ee SesseeesueeeIaatuReeOTnenerna wy EE Aynitag rae: : s a Meek a > oe & 10 OA No.2168/2013 Shit. hUS. Nair, CAO as Financial Member and CO. on 29.05.2000. The TEC . observed that all bidders are administratively and technically accepted. No deviation was quoted. Hence, if was decided that the financial bids of all the three tenders were to be opened. He has referred to the fact that the financial bids of all the three were opened and put up on 13.06.2000. He has also referred to the three letters from M/s ECIL dated 16.06.2000, 22.06.2000 and 03.08.2000, As per the CO, when the TEC met oon 64.08.2000 for evaluation of the financial bids M's ECIL's bid was not considered by the convener of TEC and member (F) who disagreed with his proposal for consideration. The proposal was overruled stating that only bvo bids Le. of M/s Baytalkitec and M/s Compu Shop had to be opened with reference to manipulated TEC minutes dated 29.05.2000 wherein the name of M/s ECIL was removed using white fluid and insertion of 4 'yes' and one 'no' in the tender evaluation list. Therefore, he had no other alternative but to sign the TEC report dated 04.08.2000.
10. They further submit that from this defense of CO, it would appear as if CO was made to act in a certain way by the convener and the finance member against his own judement and he had no option except to fall in line to avoid insubordination. The CO's initial statement of defence dated 04.09.2003, however, was on totally different grounds. As per para 3.2 of the statement of defence of the CO, he had stated "the ECIL was rejected since it was not conforming to the NIT conditions. ECHL did not have interface approval certificate nor did they have experience of OA Mo Qishaald having completed three similar works, as required by NIY / tender senditions. ECHL was not qualified for short listin ne for consideration of their financial bid since BCIL was nol eligible for ~ o~ consideration due to son fulfilment of basic technical anc eligibility requirements as stipulated in tender conditions". He had alsa stated that "in the instant case the rates quoted . EU, the ineligible renderer came on the records inadly vortently | "Uh WAS snly an inadvertent clerical error in typing, that, i was written that the Wid of ECIL was technically acceptable instead of writing 'not acceptable' The bid of ECIL should not have been opened at all. But erroneously opened by tender opening committee". 1 1S submitted that after evaluating the defence of the CO, the Inquiry OWGeer states that these submissions of the CO are at complete varlanee with the submissions naw made by him and appear to be afterthoughts. Therefore, no credence can be given fo them, The rates of M/s. ECHL were known to the CO. The rates quoted by Mis, ECIL were Rs.9,38, 720-and Rs.5,43,720/4. The tender was awarded to M/s. Baytaikitec at Rs. 12,35, 000/-per ayste m. This WAS 2 VGiy hieh rae In cCOMPparison tO EVeT the eshm ated rates of Rs. § lacs and Rs. 8.5 lacs per sysiem. Also the lack of credential of M's. BCIL found no mention in the TEC report dated 49.65 2000. The areument of the CO, therefore, appears fo be an afterthought. If as per bis inital statement of defence. he wansidered that TCIL did not have the credential or valid Interface approval, it should hay been specifically mentioned in the TEC report. It is also surprising that as a member of TEC, no efforts were made by him to deliberate the reasonableness of the rates offered or to ity to bring down the rates of M/s. Baytalkites which aa Strap oe es fo¥ PM if 3 fe} :
Cee ay Yee NARES.12 OA NG2168/2013
were abnormally high as compared to rates offered by Mis. ECIL and also their own estimated rates. The manipulations in the TEC minutes which CO claims were done by someone else, does not change the fact that CO appended his signatures both Umes as member of TEC. Also each member of the TEC is responsible for his actions, hence the CO as a member of TEC cannot escape his responsibility by saying that he was overruled by the convener and member finance of the TEC. Prom the above, it is clear that the applicant was given full opportunity to defend himself by the [O during the course of inquiry and all the points raised by him and all the evidence produced by him in his defence was evaluated by the 10.
li, Further, they contended that the relief sought by the applicant needs to be quashed since the quantum of punishment has been decided by the Competent Disciplinary Authority after following the prescribed procedure and after consulting the UPSC. The punishment is not excessive and is commensurate with the gravity of lapses committed by the applicant. The promotion of the officer has been dealt with in accordance with the norms and rules laid down on the subject. The respondents have not violated any of the said niles and procedures, The applicant is nat entitled to any relief as there is no violation of the prescribed procedure and the statutory rules. The application is devoid of any meriis and deserves to be dismissed with casts.
12. Counsel for the applicant submits that other two members of the TEC who were charged alang with the applicant had also yee Say OA No 21882013 approached Bangalore and Ernakulam Bench of this Tribunal and the Tribunal was pleased to passed the orders/judgments in the! oo avour, which were also upheld by the Hon'ble Karnataka Hign Py Court and the Hon'ble Kerala High Court, The relevant para of the Karnataka High Court of the judgement dated 13.10.2011 In WP No,8470/2007 {S-CAT), whereby the decision of the Bangalare Sench of the Tribunal was upheld, reads as under:
"8. Om perusal of the entire records and alter hearing the counse! for the partles, we are of the apinion that the tribunal has not committed any error in order te interfere with the order of the tribunal for the following reasons. [tis not In dispute that ECIL is a corporation of the petitioner-concern. Counsel for the petitioners is not disputing that M/s ECIL has not fulfilled the eligiblity criteria In onder to accent the tender of ECIL because & Aad Ao experience as notiiied in the tender. Hf the Respondent being a member of Tender Examination Committees has rejected the tender of ECIL on the ground of its ineligibiity, no court can find fault with the decision taken by the Respondent. In addition ta that petitioners' counsel is unable to dispute the statement made by Mr. Phadke thet on receipt of the complaint, Respondent had put a note to keep the recommendation in abeyance till a decision is taken by the tender accepting authority. When such 4 note is gut up by him, & would only shows that the Respondent as a prudent officer has discharged his duties, inspite of such a note if the tender accepting authority has accepted the tender, Respondent cannot be punished, Therefore, we are of the view that the tribunal is justified in holding that the disciplinary authority has waived with the opinion expressed a the UPSC while imposing penalty. When ECIL was not an eligible tenderer, Respondent & 4 sh 4 OA No. 2168/2013 being a member of the technical evaluation committee he can only recommend the other eligible tenderer, therefore we are of the view that the Respondent has not committed any filegality in rejecting the tender of ECL In the circumstances, we co not see any merits in this petition'.
13. We have heard the arguments of both the parties and perused the materials placed on record.
{4. The charge framed against the applicant js identical to the charge framed against the other two members of the TEC, Le.
"owas a Member of the Tender Evaluation Committee, irregularly recommended the acceptance of the second lowest tender of M/s Bay Talkitec (P} Ltd, for the work of Supply, Installation, Testing and Commissioning of interactive Voice Response Systems, and rejection of the lowest tender of M/s ECIL on untenable grounds In grass violation inter alla of RuJe 429 of P&T Manual Volume-i and Kule 60 of P&T Financial Handbcak Volume-t...", Other two members were also found guilty in the departmental proceedings however they have been exonerated. Moreover Hon'ble Hish has held that no illegality was committed in awarding tender, We are In total agreement with the orders passed by the Hon'ble High court. The job of the TEC is ta evaluate the bids. [If only the lowest bidder is to be granted tender then there is no need for the committee. It would be a mechanical process only. However it is not so, the lowest bidder can be bidding low as he has less capacity to complete the work or he is less experienced. Once the crferia were adopted by the committee, tender can be granted only to someone who fulfills the criteria.
hy x eS x x BS iS In the aforesaid circumsiances, we do not find any Niega ality in the decision of the TEC. Resultantly. the applicant could not have been faulted for being part of the commilttee which took the x * : 4 ote y i. oo: in decision. Hence the charge cannol be sakl to fave Geen proved against the applicant. Thus, the OA Is allowed and the impugned arder is quashed and set aside. Respondents are directed to release the consequential benefits of ihe quashing of the impugned order esa gy - abe Dees bive dara AF eernaint of {oeowa wi eas eae: within three months from the date of receipt of the cerfitied copy (Shni Krishva) (Harvinder Kaur Oberel) Member (A) Member () isk