Central Administrative Tribunal - Ahmedabad
T.P. Jain vs Union Of India (Uoi) And Ors. on 31 March, 2005
Equivalent citations: 2006(1)SLJ91(CAT)
ORDER Shankar Prasad, Member (A)
1. Aggrieved by the show cause notice dated 12.05.2003 issued by the respondents the applicant had preferred the present O.A. for quashing the said notice. When the charge sheet under Rule 14 of CCS (CCA) Rules was issued thereafter the applicant has amended the O.A. and has sought for quashing of the same.
2. The case of the applicant in brief is that after his promotion as Superintending Engineer on 7.04.1995 he was posted as Commander Works Engineer (SE) at CWE, Agra 02.09.95. The applicant had forwarded his comments dated 21.11.95 on a complaint addressed to MOS (Defence) and received from Chief Engineer, Lucknow indicating therein that GE Agra has issued tenders in a pool and ring tendering was in vogue. Pooling of tenders was resorted by GE Mathura also. Staff Court of enquiry was requested against GE Agra, CE Lucknow and GE Agra started acting against him because of this report. He was prematurely transferred to CE Eastern Command. Adverse remarks for 1995-1996 were communicated which were later expunged. He was also promoted as Additional Chief Engineer in January, 2003.
The show cause notice for lapses of 1995-1996 has been served in 2003. After the documents were made available on 10.2.2004 the applicant submitted a reply on 26.2.2004. His pension etc., have been computed as he was to retire on 31.12.2004. The show cause notice is challenged on the apprehension that issuance of charge sheet would deprive him of benefits of commutation of pension etc. The charge sheet is bad as it is a belated charge sheet. It has been issued with mala fide intention. Some of the incidents are also the basis of adverse ACR which was expunged. His detailed reply has not been properly considered. As far as the case of Brij Gopal Agrawal is concerned the said Shri Agrawal was unknown to him. The recovery from Shri Agrawal was a subject-matter of arbitration and arbitration is in favour of Shri Agrawal. The Court of enquiry had also not found anything against him.
3. The respondents in their reply have stated that when the applicant worked at Agra from 02.09.1995 to 13.06.1996 he lifted the ban on one Shri Brij Gopal Agrawal ignoring his past performance and without carrying out proper review. He favoured the contractor and insisted that GEs issue tenders to him. The following details have been furnished regarding delay in issue of charge sheet:
8.2 These irregularities were conveyed by Head Quarter, Agra vide convening order dated 27.1.1996. Thereupon preliminary investigation was carried out in all respects and the same was intimated by CE, Lucknow zxtne vide letter dated 26.09.1997 direction of Army Cadre Head Quarter Central Command, Lucknow were given to take disciplinary action under Rule 14 of CCS (CCA) Rules against the applicant. Head Quarter CCEC, Kolkatta was therefore addressed letter with a request to forward service particulars of the applicant so that the charge sheet can be issued as the applicant was posted there from CWE, Agra. The draft charge sheet was therefore preferred vide letter dated 19.11.1997 by CWE Agra which was forwarded to CE LZ, Lucknow directed to issue show cause notice to the applicant and other officers as per mandatory requirement vide letter dated 9.9.2002. Immediately CWE Agra prepared the show cause notice and forwarded the same to CE LZ, Lucknow vide letter dated 20.09.2002. Thereafter approved draft show cause notice received from CE LZ, Lucknow vide letter dated 25.09.2002. It was forwarded to concerned unit i.e. CENC C/56 APO to issue the same to the applicant. But by the time the applicant was transferred from there. Hence the same has been returned from that unit vide letter dated 21.10.2002. The said show cause notice thereafter sent to CE (AF) Ahmedabad Zone so as to serve to the applicant, who had initially sent back the same with certain queries and raising certain observations. Hence CWE, Agra forwarded the same to CE LZ, Lucknow. CE LZ, Lucknow sent that notice to CE (AF), Ahmedabad vide letter dated 28.12.2002 CE (AF), Ahmedabad sent to the said letter to CESG Pune vide letter dated 12.04.2003 to route the draft notice through E-In-C-Branch. Meanwhile observation on draft notice was ractified vide CECC, Lucknow vide letter dated 26.4.2003 and sent to CE (AF), Ahmedabad with copies to other involved units CE (AF), Ahmedabad served the said show cause notice to the applicant and called upon him to furnish his explanation to the same.
They have also referred to the various pleas taken by applicant before submitting his reply to the show cause notice. The time taken in examination of reply is indicated as under:
The applicant ultimately submitted his explanation to the show cause notice dated 26.2.2004 which has been forwarded by Ahmedabad Office to CECC, Lucknow vide letter dated 27.2.2004 who in turn submitted the same to CE LZ, Lucknow along with para-wise comments of CWE, Agra dated 13.4.2004. Head quarter CECC, Lucknow asked for manuscript copy of C of I proceedings in connection with irregularity in contracts pertaining to GE, Agra and GE, Mathura vide letter dated 21.4.2004. The same was forwarded by CWE, Agra vide letter dated 25.4.2004. The matter was also forwarded to E-In-C-Branch Army Head Quarter, New Delhi, who asked for the copy of letter dated 16.09.1996 written by CWE, Agra. In response to the same CWE, Agra forwarded the same vide letter dated 11.09.2004. The matter was thoroughly examined by the Army Head Quarter. Only thereafter the conscious decision was taken to issue charge sheet. Accordingly charge sheet dated 11.11.2004 was prepared and sent to CWE Agra for doing needful vide letter dated 3.12.2004. Meanwhile the applicant has preferred this application on so called apprehension of issuance of charge sheet.
4. Rejoinder/sur-rejoinder have been filed.
5. We have heard the learned Counsels.
6. The reply itself indicates that the discrepancies have been conveyed by Headquarter Agra convening order dated 27.01.96. The applicant is asked to show cause against this and two other incidents vide the show cause notice dated 27.05.2003. Headquarter commands Work Engineer letter dated 10.02.2004 is as under:
It is intimated that Exhibits G-1 to G-11 of Witness No. 14 MES-147027 Shri D.V. Paranjape, Ex-CWE Agra are not available in the Photocopy of Staff Court of Inquiry held with this office as well as received from CE HQ CC, Lucknow vide their letter No. 900613/371/LZ/247/E1 (Con) of 09 February, 2004.
Findings of the Court (Fifteen Pages) as received from CE HQ CC Lucknow vide their above letter are handed over as desired please.
Since the Original copy of Staff Court of Inquiry is not available, as such CTC cannot be done from typed copy.
The basis of charges may be obtained from CE HQ CC Lucknow.
The applicant in his reply has stated that all the documents sought for have not been made available and that he reserves the right to file further reply. The applicant has stated that the Staff Court of Enquiry has not given a conclusive finding on the aspect of rate in 1994-95 viz. October/November 1995 and has not assessed the loss, for which it had been primarily constituted. They have given findings beyond terms of reference (Para 7). The Presiding Officer was a close friend of Brig A.K. Nagpal who had spoilt my ACR. Reasons have been assigned in Para 9 as to why this enquiry was not impartial. It refers to amongst others the following assertions:
(a) The report of EE of CE Lucknow Zone Pradeep Singh was quite wrong as GE Agra did accept the tenders at higher rate as compared to GE Kheria Air Force.
(b) I want to produce CE, Lucknow Zone letter dated 18.12.95 which will help in avoiding non-issue of tenders on flimsy ground.
Vol. X of file No. 81000/R/E8 was declared last by SW fearing action due to his default of not scrutinising the non-issue reports.
This file was the only document essential for my evidence to prove the ring tendering. This file was reconstructed and forwarded to Presiding Officer due to mala fide action didn't call me for evidence after receipt of this reconstructed file.
(c) Wherein comparison of rates for the period of 94-95 and Oct-Nov. 95 was given for a few tenders by me. There was a reduction in rates in the range of 30%-40%. The complaint Bhojraj who complained to Prime Minister had brought out that rates in GE Agra were higher than GE (AF) Kheria, (Agra) rates, whereas it should have been reverse due to restricted area working and security limitation in Air force area. The Staff Court of Inquiry has not compared the rates with GE Kheria rates of 94-95 which was essential to reveal the truth. The modus operandi was to leave some applications of contractors unattended. In this connection refer to Q. No. Ion Page No. 432 of Staff Court of inquiry statement of Shri Arbind Kumar, EE, GE Agra (Witness No. 4). Certain applications entered in the register were being rejected on flimsy grounds as brought out in paras here-in-before. Non-issue reports being submitted to CWE Agra office were being filed without any observation. The GEs were including some contractors by selection to show on paper issue of tender to 8/10 people, but everything was managed to avoid fair competition, resulting in acceptance of higher rates. Rates of same GE started coming down by 30%-40% in Oct/Nov. 95 due to breaking of nexus going on in GE offices by the undersigned as non-issue reports were checked properly and GE's were advised to reconsider issue of tenders to contractors rejected on flimsy grounds.
As far as this article of charge is concerned he replied as under:
(i) The reason for imposing ban on the contractor M/s Braj Gopal Agrawal vide CWE Agra letter No. 911O/AGR/1568/E8 dated 20th July, 94 (Annexure-16) was on account of cancellation of contract vide CA No. GE/AGR/65 of 93-94 'Provision of furniture for 16 single JCOs accn at Agra'.
(ii) Consequent to recovery of extra expenditure incurred by Govt. in carrying out work at contractor's risk and cost, demand for lifting of ban on the firm was being projected by the contractor from April 95 onwards but no action was taken by CWE. In this connection refer contractor's letter No. F-83 dated 21 April, 95 (Annexure-17). Feeling aggrieved by no action/reply from CEW Agra, the firm approached Maj. Gen, T.M. John, CE Central Command and CE Lucknow Zone for intervention vide his letter dated 27 September, 95 (Annexure-18).
(iii) Telephone instructions/directions for resolving grievances of contractor were received from CE Lucknow Zone. Accordingly, the contractor was called for personal interview with CWE on 9 October, 95.
(iv) During interview the contractor explained all the grievances and gave a written undertaking vide his letter No. F-83 dated 10th October, 95 (Annexure-19) that recovery of Rs. 11,360 circulated by GE Agra against CA No. CE/AGR/15 of 93-94 has been recovered by GE Mathura against CA No. CE/MTR/38 of 93-94.
(v) Since the contractor had been put under ban for a period of more than one year (20 July, 94 to 09 October, 95) and excess amount was recovered, it was considered proper to lift the band Aspect of performance of contractor was not ignored, but it was properly evaluated. The lifting of ban by Enlisting Authority after aperiod of more than one year met ends of justice in this case and helped in curbing improper activities of lower formations by taking shelter of ban on this contractor, who was quoting competitive rates. This was also considered necessary to generate competition in future works as there was problem of acceptance of tenders at high rates by allowing ring tendering by the GEs as brought out in earlier paragraphs.
7. Thereafter the charge sheet has been issued. An examination of the charge sheet reveals the following:
(a) No witness have been cited in Annexure.
(b) The relied upon documents are as under:
1. Staff Court of Inquiry proceedings. Less recommendations and findings/opinions.
2. Letter dated 10/10/1995 from M/s. Braj Gopal Agarwal on the back of which Shri T.P. Jain as the then CWE, Agra, endorsed the executive order/direction in his own hand on the same date for lifting the ban imposed on M/s Braj Gopal Agarwal through CWE's letter No. 9110/AGR/1568/E8 dated 30th July, 1994.
3. Letter No. 9110/AGR/2136/E8 dated 10th October, 1995 issued by Shri T.P. Jain on the subject of lifting the ban on the issue offender to M/s Braj Gopal Agarwal.
It appears that the report of Court of Enquiry that is dated 31.1.97 the other document is the letter dated 10.10.95. This letter has the following endorsement (as per instructions/orders on contractors letter dated 10.10.95 at P. 213)
8. It is clear from what has been discussed in the preceding paragraphs that the incident came to notice in 1997 and the other relied upon documents are of 1995. Yet the show cause notice is issued in 2003, letter dated 10.2.2004 shows that certain documents are not available. The explanation given by the applicant refers to instruction received from higher formations regarding case of this contractor. It also refers to rates coming down because of breaking of nexus. Yet no further document is brought on record. The applicant has questioned the findings of Court of Enquiry and yet the President of Court of Enquiry is not cited as a prosecution witness. The applicant has been transferred out in June 1996. Nothing is on record to suggest if this decision was reviewed after it came to light. Nothing also is on record to suggest that because of this decision any tendors were awarded to this particular contractor and his failure to execute the contract has resulted in loss to the department.
9. The learned Counsel for the applicant has relied on the decision of Apex Court in State of Madhya Pradesh v. Bani Singh . The defence of the Government for the delay in issue of charge sheet was that the incident of 1975-77 came to light only in 1987. The Apex Court held :
The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiated the disciplinary proceedings as stated fry the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.
10. He has also relied on the decision dated 12.01.2004 of Hon'ble Gujarat High Court in Spl. C.A. 5498/87 quashing the charge sheet issued after a delay of 12 years. The said decision has been confirmed in LPA filed by the State of Gujarat.
He has also relied on the decision of CAT Jabalpur Bench in O.A. 376/89 quashing the charge sheet issued 10 years after the acts of omission/commission had come to notice.
11. The learned Counsel for the applicant has drawn our attention to the Para 33 of the decision of Apex Court in UOI v. V.K. Khanna AIR 2001 SC 343. It is as follows:
While it is true that justifiability of charges at stage of initiating a disciplinary proceeding cannot possibly be delayed into by any Court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide motive involved in the matter of issue to a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law Courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law Courts ought to rise up to the occasion. (Para 33).
It is well settled in Service Jurisprudence that the authority has to apply its mind upon receipt of reply to the charge-sheet or show cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmativethe enquiry follows but not otherwise.
12. The Apex Court in State of Punjab v. Chaman lal Goyal , has held:
11. The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak. Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In Paragraph 86 of the judgment, this Court mentioned the propositions emerging from the several decisions considered therein and observed that "ultimately the Court has to balance and weigh the several relevant factors-balancing test or balancing process and determine in each case whether the right to speedy trial has been denied in a given case". It has also been held that, ordinarily speaking, where the Court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that, that is not the only course open to the Court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the Court to make such other appropriate order as it finds just and equitable in the circumstance of the case.
13. The Madras High Court in T.S. Shankamnarayanan v. High Court of Judicature (1995) SLR 713 (Madras) has held:
The law requires that before a charge-sheet is framed and issued the appropriate authority has to be satisfied that there are good reasons for initiating disciplinary proceedings and it must arrive at that decision. If a charge-sheet is issued without there being any decision to initiate disciplinary proceedings, the entire disciplinary proceeding will be vitiated.
14. Coming to the facts of this case we find that for an incident of 1995 and for which relied upon documents are also of 1995 and January, 1997, the explanation is called for in 2003 and the charge sheet issued in November, 2004 barely two months before retirement. The reply is silent for the period between 1997-2002. The charge sheet is peculiar in the sense it only refers to lifting of ban without following procedure. It does not say that the applicant has obtained advantage or that the tenders had been awarded to this contractor and that the failure to execute the contract has led to loss to Government. This is in the background of the reply of the applicant that there was a telephonic reference from higher up for looking into his case, that because of his efforts tenders were 30-40% lower than earlier year. He has challenged the findings of Court of Enquiry yet neither any prosecution witnesses are cited nor any further documents are on record.
CCS (CCA) Rules require that charge sheet "must be accompanied with the list of prosecution witnesses and all relied upon documents. Note below Rule 14(18) of CCS (CCA) Rules further provide that gaps cannot be filled up during the course of enquiry. The Apex Court has held that charge sheet must be in accordance with rules and that it should be issued after application of mind.
The decision in Chaman Lal Goyal's case further provides that balancing has to be made between right to speedy trial and public interest. It has also to be seen if the delay will prejudice the defence. Some documents have not been made available even at the time of filing the reply to show cause notice. We have noted that there is no charge of obtaining pecuniary advantage or loss of revenue to Government. It is also a settled position of law that minor penalty charge sheet becomes infructuous on the date of retirement.
15. In view of what has been discussed above we are of the view that this case is one of these cases where charge sheet is required to be interfered with. We accordingly, quash and set aside the chargesheet. The terminal benefits and leave encashment if not paid shall be paid immediately. Otherwise interest will be payable as per Government orders. O.A. is allowed. Costs quantified at Rs. 1000 only.