Central Administrative Tribunal - Delhi
Ajay Prabhakar vs Union Of India Through on 7 December, 2011
Central Administrative Tribunal Principal Bench OA No.2961/2009 New Delhi, this the 7th day of December, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Ajay Prabhakar S/o Sh. Lekh Raj Prabhakar R/o 42 East, Park Estate, Ichapur 24, Parganas (N), West Bengal 743144. .. Applicant. (By Advocates : Shri A. K. Behera and Sh. Yogesh Sharma) Versus 1. Union of India through Secretary (DP) Ministry of Defence, Government of India, New Delhi. 2. The Under Secretary (Vig) Government of India, Ministry of Defence, Government of India, New Delhi. . Respondents. (By Advocate : Shri R. V. Sinha) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
The challenge in the present OA is to the order dated 29.12.2008 (Annexure-A1) by which the applicant was imposed penalty of reduction of pay by one stage from `36530 (Pay Band `28930+Grade Pay of `7600) to `35460 (Pay Band `27860+Grade Pay `7600) for a period of one year with further direction that the applicant would not earn any increment during the period of penalty and the reduction would have the effect of postponing the future increments of his pay. Being aggrieved, the applicant is before this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying to quash (i) the impugned order dated 29.12.2008, (ii) dissenting note of the competent authority, and (iii) impugned charge sheet dated 03.3.2003. Further, he prays to grant consequential benefits including refixation of pay and allowances, arrears of difference of pay and allowances and due promotion and seniority from back date with all other benefits.
2. Brief factual matrix of the case that led the applicant to come before this Tribunal would disclose that he was appointed on 03.3.1989 as Assistant Works Manager in the Indian Ordinance Factories under the Ministry of Defence. He was promoted to the post of Work Manager in 1993 and again to the post of Deputy General Manager in the year 2001 and was posted as such in the Rifle Factory, Ichapur, West Bengal. While the applicant was on deputation working as Senior Scientific Officer (W) in Bureau of Police Research and Development (BPRD), he was asked by his senior officers to undertake the task of capacity verification against his wishes as he informed that he did not have the expertise and infrastructure to carry out such capacity verification. He submitted that the said capacity verification should be undertaken by Director General of Supply and Disposals (DGS&D) which the senior officers also endorsed. But, being pressed to undertake the capacity verification, he did attend to the task and faced the allegation that he committed alleged misconducts of negligence and furnished false capacity verification. He was issued a major penalty charge sheet vide Memorandum dated 03.3.2003 (Anneuxre-A2) which was supported by 18 relied upon documents and statement of 12 witnesses. The charge memo with 2 Articles of Charges reads as follows:-
ARTICLE-I Shri Ajay Prabhakar, while working as Sr. Scientific Officer (W) during August to December, 1997 along with Shri M. M. Mathew, Deputy Director (Dev.) being required by the Director General, BPR&D to submit their report regarding the capacity of M/s Laggar Industries Ltd. to bullet proofing of vehicles and manufacture of bullet proof steel, falsely mentioned in their report that bullet proof steel was being made by M/s Laggar Industries Ltd. at DBN Road, Batala and the ingots of bullet proof steel were being sent for rolling at M/s Sooti Steel Rolling Mills, Railway Road, Mandi Gobindgarh in which M/s Laggar Industries Ltd. was a partner without properly verifying the facts. Whereas no unit of M/s Laggar Industries ever existed at Batala and there was no M/s Sobti Steel Rolling Mills at Mandi Gobindgarh.
Therefore, it is alleged that Shri Ajay Prabhakar while discharging his duties acted in a gross negligent manner and submitted false capacity verification report with malafide intention to cause undue favour to M/s Laggar Industries Ltd. and thus exhibited lack of integrity, devotion to duty and acted in a manner unbecoming of Government servant and thereby violated Rule 3 (1) (i), (ii) and (iii) of CCS (Conduct) Rules, 1964.
ARTICLE-II Shri Ajay Prabhakar, while working in the aforesaid capacity during the said period, alongwith Shri M. M. Mathew also misleadingly mentioned in their report that M/s Laggar Industries Ltd. was executing the order for fabrication of 40 bullet proof Gypsies and 16 bullet proof Tata 407 for Manipur Police, while discussing the activities of the firm at the Jallandhar Factory, whereas no such work was being executed by the said firm at Jallandhar.
Thus, Shri Ajay Prabhakar while discharging his duties acted in a gross negligent manner and submitted false verification report with malafide intention to cause favour to M/s Laggar Industries Ltd. and thereby exhibited lack of integrity, devotion of duty and acted in a manner unbecoming of a Government servant and violated rule 3 (1), (i) & (ii) & (iii) of CCS (Conduct) Rules, 1964 resulting in grave misconduct. As the applicant denied the charges, the departmental enquiry was held on the said charges levelled against him. The Enquiry Officer (EO) submitted his report dated 09.01.2006 holding the Article 1 of the charge as established to the extant that the applicant could not establish that M/s Laggar Industries Limited had their unit at DBN Road, Batala which he claimed to have visited. The applicant could not also establish the existence of the Unit of M/s Sobti Steel Rolling Mills at Railway Road, Mundi Govindgarh, Punjab. The part of the capacity verification report which dealt the capacity verification of the M/s Laggar Industries Ltd. at DBN Road, Batala was found to be not factually correct. However, same did not lead to the conclusion that the whole capacity verification report was false. The findings adduced during the enquiry by Presenting Officer could not establish that the whole capacity report was false. Thus, the said charge was held as partly proved by the EO. The Article-II of the charge was held as not established. The Disciplinary Authority did not agree with the findings of the Enquiry Officer and issued a dissenting provisional note recorded under Rule 15 (2) of CCS (CCA) Rule, 1965 vide Memorandum dated 04.01.2007 (Annexure-A4). The pertinent part of the said disagreement note reads thus :-
3. The competent disciplinary authority after considering the aforesaid inquiry report, the factual basis of the charges, evidences emanated during the inquiry proceedings, does not agree with the findings of the Inquiry Officer. The tentative reasons for disagreement are as follows ;
3.1 The C.O. in his capacity verification report has mentioned/highlighted the following :
M/s Laggar Industries Ltd. has fabrication workshop at Jallandhar.
M/s Laggar Industries Ltd. has another unit at DBN Road Batala and the firm made bullet proof steel at their DBN Road Batala unit.
For rolling the ingots of bullet proof steel made at DBN Road Batala workshop of m/s Laggar Industries are sent to M/s sobti Steel Rooling mills, Railway road Mandigobind garh in which M/s Laggar Industries is a partner.
While mentioning the facilities observed by the C.O. and Shri Mathew during their visit to Jallandhar on 12.12.1997, they specifically mentioned that The workshop has required space, equipment and other facilities for undertaking the fabrication of BP vehicles. The firm is executing an order for fabrication of 40 bullet proof Gypsies & 16 Bullet proof kits which will give protection against 7.62 mm SLR bullets to CISF.
3.2 From the perusal of the Article of charge I, it is very clear that the allegation against the C.O. is regarding false reporting of manufacturing of bullet proof steel by M/s Laggar Industries at its unit at DBN Road Batala and getting the same rolled at M/s sobti Steel Rolling mills at Mandigobind garh in which M/s Laggar Industries was a partner and not false reporting about its Jallandhar unit. Similarly the Article of charge-II is regarding giving misleading information pertaining to execution of Manipur Police order for fabricating bullet proof Gypsies and Tata 407 at Jallandhar factory as nowhere in the charge it is mentioned that the firm was not executing the order of Manipur police. The inquiry report therefore, is erroneous, as the Inquiry Officer has failed to appreciate the evidences adduced during the inquiry proceedings in right perspective with regard to charges.
3.3 The various evidences, both oral and documentary adduced during the inquiry, conclusively establishes the non existent of steel manufacturing plant of M/s Laggar Industries at DBN Road, Batala and of Sobti Rolling Mill at Mandi Govind garh. The very mention of these non existent units in the report casts doubt about the intention of the verifying officers. Another capacity verification inquiry done latterclearly showed that the firm m/s Laggar Industries did not have the capacity to manufacture Bullet proof vehicles. This in itself shows that the capacity verification report submitted by the charges officer favouring M/s Laggar Industries was not done properly and was motivated.
3.4 The inquiry officer has failed to appreciate the fact that the C.O. was deputed to carry out capacity verification and he was assigned a specific task which needs to be carried out in consonance with laid down guidelines as per form No.7 provided to him. The sensitive nature of orders to be assigned in future solely depended on the capacity verification report to be rendered by the concerned. If laid down guidelines have not been observed and capacity verification report has been submitted in an arbitrary manner, the misconduct will be construed as lack of devotion to duty.
3.5 Further the main purpose of the visit of the C.O. was to locate the firms and to physically verify the capacities whereas the C.O. has not done the job and gave false locations of the firms as well as falsely implied as if bullet proofing work for Manipur police was being carried out at Jallandhar. The capacity verification of the firm was being carried out to establish his credentials. The very fact of falsification of capacity verification report by the C.O. and Shri M.M. Mathew establishes the motive of providing undue favour to M/s Laggar Industries Ltd. and therefore the Articles of Charge-I becomes fully established.
3.6 The second charge of providing misleading information regarding capacity of the firm to manufacture bullet proof vehicles at the Jallandhar fabrication unit is proved beyond doubt. Although the firm was executing the order for Manipur Police, the same was being done at Imphal, not at Jallandhar (As was made out in the capacity Verification report). This fact regarding Manipur Police order has been mentioned along with description of the space, equipment and other facilities of the workshop of M/s Laggar Industries at Jallandhar so as to make the reader feel as if the order of Manipur Police was being executed at Jallandhar and the firm has sufficient infrastructure at its Jallandhar unit to undertake the manufacture of bullet proof vehicles.
3.7 Further with regard to Article of charge-II, the Inquiry Officer has not established the same on the ground that the Presenting Officer could not produce Shri sandeep Sobti, PW-12 to substantiate the allegations. In this regard, it is highlighted that Shri Sandeep Sobti, General Manager, M/s Laggar Steel Industries , was the key prosecution witness. He gave his deposition before the CBI and it was expected that he would corroborate the statement given by him, before CBI, also before the Inquiry Officer. This key prosecution witness unfortunately could not attend the court of inquiry 4 times in sucesion. However, when yet another opportunity was given to him to appear on the fifth time, he submitted medical certificates certifying his inability to attend the inquiry on the fifth opportunity. On this the presenting officer requested the I.O. to give one more opportunity to him to produce Shri Sobti. But the I.O. rejected the request of the Presenting Officer.
3.8. During the pendency of the Inquiry Report, the matter regarding production of the key witness before the inquiry proceedings was also referred to the MoD vide OFB I.D. was also requested to keep the inquiry in abeyance till a decision is received from the Ministry. But the I.O. did not wait for the MODs decision in the matter and concluded the proceedings without allowing deposition of Shri Sandeep Sobti PW-12. In fact, during the inquiry the C.O. had also demanded that Shri Sandeep Sobti should be produced for facilitating cross examination by him.
3.9. The I.O. in his report has not proved that charge-II. The reason for not proving this charge as brought out by the I.O. is that the P.O. could not produce Shri Sandeep Sobti and as a result of this his statement before court of inquiry remains uncorroborated. Prima facie Shri Sandeep Sobti before the I.O. was the beneficiary of the acts of the C.O. He had to appear before the CBI whom he could not avoid. However, his conduct before the I.O. was clearly to avoid appearance. In the light of these facts the other evidence should have been given due credence by the I.O. The conclusion of the I.O. with regard to charge-II is not correct as the I.O. did not evaluate other evidences, which were there on record, on the basis of preponderance of probability which is normal rule in evaluation of evidences in the departmental inquiries. The fact that M/s Laggar Industries Ltd. was executing the fabrication work of Bullet Proofing of Vehicles for Manipur Police at Imphal and not at Jallandhar is admitted by the C.O. himself in his reply to the Q.No.19 of the P.O. during inquiry proceedings dated 17.3.2005. The relevant extracts of the inquiry proceedings are appended below :
Q.19- Regarding fabrication of vehicles for Manipur Police why did you not mention in your report, in the most simplest terms that M/s Laggar Industries Ltd. was executing the fabrication work of Bullet Proofing vehicles for Manipur Police at Imphal.
A- The order was being executed by the firm M/s Laggar Industries Ltd. in my report I have mentioned that the firm is executing an order for fabricating 40 bullet proof Gypsies and 16 Tata 407 for Manipur Police. In my capacity verification report above this sentence I have used the word workshop. This word workshop clearly indicated that the workshop is located at Jallandhar. However, the word firm indicates that the fabrication has been done by M/s Laggar Industries Ltd. but this does not by any means convey that fabrication has been done in the workshop of M/s Laggar Industries at Jallandhar. Moreover with my report I had enclosed certificates signed by Shri D.S. Grewal, DGP, Manipur Police dated 8.11.1997 which very clearly mentioned that the firm has executed the work in Manipur Police Central Motor Transport Workshop at Imphal. 3.10 The above fact is also corroborated by the final recommendation of Committee of members of BPR&D dated 1.10.1999 in respect of M/s Laggar Industries Ltd., Jallandhar which is annexed as Document No.15 to the Charge Memo . This report has conclusively established that M/s Laggar Industries Ltd. did not have capacity to carry out bullet proofing jobs at Jallandhar. This shows that the firm did not have the requisite capacity earlier also when the C.O. visited the firm for capacity Verification. The Inquiry Authority has ot taken these facts on record into account, which conclusively prove the Article II of the charge. The tentative reasons for disagreement were served on the applicant who submitted his detailed reply on 22.02.2007. The Disciplinary Authority considered his representation and the facts while passing the impugned penalty order dated 29.12.2008. As the said impugned order is a Presidential Order, feeling aggrieved of the same, the applicant has come to the Tribunal in the instant OA.
3. Highlighting the background of the case, Shri A. K. Behera, learned counsel for the applicant assisted by Shri Yogesh Sharma, learned counsel, limits his contentions to the following (i) He would contend that the Enquiry Officer (EO) and the Disciplinary Authority did not hold the alleged act of the applicant with malafide intention to grant undue favour to the Ms Lagger Indusries Ltd. (ii) Shri Behera would submit that the applicant did not commit any misconduct in the eyes of law. Applicant has not violated any rule/guidelines/instructions and whatever has been stated in the charge memo, such acts cannot be termed as misconduct and in support he draws strength from the judgment of Honble Supreme Court in Vishwanath Mishra Versus Uttar Pradesh [1985-2-SLR-708], A. L. kalra versus The Projects and Equipment Corporation of India [AI 1984 SC 1361]; and the judgment of Kerala High Court in C. M. Kannan Versus Secretary Board of Revenue (Taxes), Trivandrum[1994-40-SLR (Ker) 521]. (iii) Shri Beheras contention was that the applicants representation against the dissenting note of the Disciplinary Authority was not considered, and his case was hurriedly finalized. (iv) Referring to the Article-I of the charge, Shri Behera would submit that there were two elements viz (a) Professional Competence and (b) malafide intention. He contended that the applicant did not have professional expertise to undertake capacity verification which aspect was informed to the respondents much before the task was assigned to him. The second element of the Charge i.e. malafide intention of the applicant, has not been proved. With regard to the information treated as false by the respondents, Shri Behera would contend that such information gathering was not within the scope of applicants defined task. Therefore, that information cannot be the basis for the charge. (v) His contention is that the complaint given by the Eagle Industries has been clarified/commented by the applicant which should have been accepted by the Competent Authority. (vi) Non supply of the statements of the listed witnesses has prejudiced the applicant to defend his case. He highlighted the violation of the principles of natural justice during inquiry proceedings on the grounds of (a) abnormal delay in allowing inspection of prosecution documents; (b) non-production of originals of the prosecution documents for inspection by the applicant; (c) denial of access to all the prosecution documents; (d) not providing copies of the important documents; and (e) providing additional documents after clearance of the Presenting Officer. Shri Beheras contention is that the entire inquiry proceeding has been vitiated for the above reasons. (vii) It was further stated that the impugned order suffers from the illegality in the sense that same is not a reasoned and speaking order and proportionality angle has not been examined by the Disciplinary Authority. He, therefore, urges to allow the OA with all consequential benefits.
4. Contesting the grounds taken by the applicant, the respondents, on receipt of the notice from the Tribunal, have filed the reply affidavit on 7.4.2010, additional affidavit on 30.7.2010 through MA No.1956/2010. As the applicant submitted the rejoinder on 04.08.2010 and an additional affidavit on 29.11.2010, the respondents filed an additional affidavit on 19.7.2011. In the process, it is noticed that the pleadings have not only become bulky but also lot of technical and associated details have been there to buttress the respective grounds which we consider not so relevant in the instant OA. Nonetheless we perused all these pleadings very carefully.
5. It is submitted by Shri R.V. Sinha, the learned counsel for the respondents that though the malafide intention of the applicant could not be established, but the fact remains that wrong and false information given by the applicant in his report has been established beyond doubt. With regard to non-supply of the statements of listed witnesses, it is submitted that during the inquiry proceedings, the applicant being present he not only got the copy of daily order sheet recordings but also has seen statements of the witnesses. The preliminary inquiry report being confidential in nature is not supplied to the delinquent officers, as such report does not form part of the listed documents. Accordingly, the Inquiry Officer neither relied on the preliminary inquiry report nor was he obliged to give copy of the preliminary inquiry report to the applicant. It is further submitted that the professional expertise for capacity verification is one thing and the location of the industries is different thing. The concerned units of M/s Laggar Industries at Batala and M/s Sobti Steel Rolling Mills at Mandi Gobindgarh being non-existent, information furnished by the applicant was clearly false statement. Shri R.V. Sinha would, therefore, contend that the Inquiry Officer and Disciplinary Authority have followed the appropriate procedure and accorded due opportunity to the applicant in conformity with the principles of natural justice. The dissent note was provisional in nature and the Disciplinary Authority took note of the same along with the applicants representation thereon, while deciding the matter. His further submission is that the penalty of reduction of pay by one stage from `36530 to `35460 for a period of one year with further direction that the applicant would not earn an increment during the said period was proportionate to the proved misconduct committed by the applicant. He, therefore, urges that the OA should be dismissed.
6. On a close and careful scrutiny of the 1st Article of charge and the findings of the I.O., it is noticed that the very existence of the factories at the location was in question. Such facts do not need professional experience or skill to find out the existence of the unit of M/s Laggar Industries at Batala, and M/s Sobti Steel Rooling Mills at Mandi Gobindgarh. Any ordinary person can find out the existence or otherwise of a factory/unit/company in a specified place(s). The applicant being a senior officer in the rank of Deputy General Manager/Senior Scientific Officer could have found the correctness or otherwise of the facts. He definitely gave wrong and false information in his inspection and verification report. The question arises - who would have got the benefits due to the false facts given by him? Surely, M/s Laggar Industries is the beneficiary.
7. With regard to the Article-II of the charge, the I.O. has come to the conclusion that the Article II is not established. But the Disciplinary Authority has tentatively concluded that the fact that M/s Laggar Industries Ltd. was executing the fabrication work of Bullet Proofing of Vehicles for Manipuir Police at Imphal and not at Jallandhar is admitted by the C.O. himself in his reply to the Q.No.19 of the P.O. during Inquiry proceedings dated 17.3.2005. This revealed that the Firm did not have the requisite capacity to carry out bullet proofing jobs at Jallandhar. This is an admitted fact as the applicant himself has stated in the reply to the Question no.19 of the Presenting Officer during inquiry proceedings held on 17.3.2005.
8. The misconduct proved is not violative of any statutory provisions but definitely the information given by the applicant being false, constitute the misconduct. May be there is no proof about his malafide intention to give such false information. The officer of his rank i.e Deputy General Manager submits a report after inspection which is found to have false information on the location of Laggar Industries and Sobti Steel Rolling Mills, has ofcourse, committed willful misconduct. The judgments relied on by the counsel for the applicant to state that the acts of omission/commission on the part of the applicant are not misconducts, are distinguishable on the facts and controversies involved in A.L. Kalras case (supra), C.M. Kannans case (supra), and Vishwanath Mishras case (supra)
9. It is noticed from the pleadings that the applicant was supplied with 18 relied on documents and statements of 12 witnesses. To say that he was not supplied relevant statement was rather far from truth. As per the instructions in the subject, the Preliminary Enquiry (PE) report and statements received during the PE if not included as part of the listed document, the non supply thereof would not constitute violation of principles of natural justice.
10. The Disciplinary Authority has considered the applicants reply to both Articles of charges, his response to the IOs report and disagreement note. CVC advice was given to the applicant . It is seen from the impugned order that the Disciplinary Authority observed that the Charged Officer has not brought out any new facts, other than those on record and adduced during the inquiry proceedings. It has also been observed that the arguments submitted by the Charged Officer are very technical in nature and do not address the substance of the charges. It has been established beyond doubt that the purported units of M/s Laggar Industries at Batala and Mandi Govindgarh do not exist. Regarding the actual production capacity of M/s Laggar Industries, the report of the team that conducted a fresh verification, makes it clear that during the previous two and a half years, the firm had not manufactured bullet proof steel and that their furnace and rolling machine were in a dismantled condition. The President/Disciplinary Authority was, therefore, of the view that there was gross dereliction of duty on the part of the Charged Officer in respect of capacity verification. The officer simply accepted the claims made by the companys representatives without verifying the basic facts. Thus, the President/Disciplinary Authority held the charges as fully established. The disagreement note provisionally has given the grounds/reasons for disagreement.
11. The respondents in their additional affidavit dated 30.7.2010 have clarified the points raised by the applicant in para 4.11, 4.12 and 4.22.2 of the OA. Respondents have stated that bullet proof sheets are different from cheaper hardened steel and expensive armour steel and specifications for each vary. The applicants responsibility was to verify the capacity and capability with cost of bullet proofing steels of unverified quality. It is further clarified that the Government purchases are done through open tenders and names of participants become known only upon opening of tenders. Thereafter due processes including capacity verification of unregistered and unestablished sources who participate in a tender, have to be carried out. The applicant was assigned to undertake the capacity verification and Form 7 did not have guidelines/instructions for assessment of capacity but was a proforma for furnishing details of plant, machineries and test facilities in the company. It is the case of the respondents that the applicant in the OA has brought in irrelevant materials with incorrect information.
12. Considering the totality of facts and circumstances of the case, we are of the considered view that the IO, and Disciplinary Authority accorded the applicant appropriate opportunities for defending himself in compliance of the principles of natural justice. For the proved misconducts, the Disciplinary Authority has inflicted penalty of reduction of pay by one stage for a period of one year with further direction that he will not earn any increment during the said period and will have effect of postponing his increments. Testing the same on the touch stone of proportionality, the punishment is considered to be proportionate. Examining the case from all possible angles of facts and law, we do not find any possibility of interference by the Tribunal. The applicant has failed in his effort to make out a case in his support.
13. Thus, finding no merits in the case, we dismiss the OA. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /rk/