Central Administrative Tribunal - Delhi
T.J. Nihalani vs Union Of India Through Secretary on 30 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3641/2012 New Delhi this the 30th day of January, 2014 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) T.J. Nihalani S/o late Shri J.S. Nihalani R/o B-1007, Gaur Green City, Indirapuram, Ghaziabad-201014 Applicant (Appeared in person) VERSUS 1. Union of India through Secretary Ministry of Urban Development, Nirman Bhawan, 122-C, Ist Floor, Maulana Azad Road, New Delhi-110008 2. Secretary Union Public Service Commission Dholpur House, Shahjahan Road, New Delhi-110069 3. Secretary, Central Vigilance Commission Satarkata Bhawan, CGO Complex, Block-A, INA, New Delhi-110023 Respondents (Through Mr. B.K. Berera and Mr. Rajinder Nischal, Advocates) O R D E R Mr. P.K. Basu, Member (A):
The applicant was an Executive Engineer with the CPWD. On the day of his retirement i.e. 30.04.2007, he was served with a charge memorandum dated 27.04.2007 in which the charges were as follows:
Article-I Shri T.J. Nihalani, EE got executed and completed the work of stepped wooden flooring mentioned at S.No. (ii) above on 23.5.2006. After completion of the work Shri T.J. Nihalani, EE called tender on 21.6.2006 and the work was awarded to M/s C.S. Construction Co. on 14.8.2006. The work was shown as started on 14.8.2006 and completed on 26.8.2006. Action of Shri T.J. Nihalani to call and award tender for the work after actual completion date is in contravention to para 2.1, 2.3., 2.24, 5.1 of CPWD Works Manual 2003 and para 61, 85 to 107 of CPWD Code.
Article-II For the work of stepped wooden flooring as mentioned at S.No. (ii) above, three contractors submitted applications for issue of tender papers. Sh. T.J. Nihalani issued tender papers to only two of the applicants and refused to issue tender papers to third applicant without any valid reasons. Action of Sh. T.J. Nihalani, EE is in contravention to para 17.1.2, 17.6.1 of CPWD Works Manual 2003 and conditions of NIT and press notice of the work.
Article-III Tender for the work of stepped wooden flooring as mentioned at S.No.(ii) above were invited and received after the completion of the work and had been accepted at uncompetitive rates by conducting post tender negotiations. Tender papers were refused to one of the applicants without any valid ground, to prevent competition. Shri T.J. Nihalani, EE accepted tender of the work at higher rates causing loss to the Govt.
Thus the said Shri T.J. Nihalani, Executive Engineer, by his above acts of gross violation of Rules, failed to maintain absolute integrity and devotion to duty thereby contravening provision of Rules 3 (1) (i), 3 (1) (ii) and 3 (1) (iii) of CCS (Conduct) Rules, 1964.
2. Along with the charge memorandum, the OM dated 26.04.2007 of CVC was enclosed which advised the government to initiate major penalty proceedings against the applicant. The applicants pension and retiral benefits were held up and he was authorized payment of provisional pension only. Thereafter, there was no movement for few months. Vide order dated 27.09.2007, the respondents appointed the Inquiry Officer (IO) and the Presenting Officer (PO). However, the IOs/POs appointment had to be changed and finally vide memo dated 4.06.2008, this was finalized. The IO held his inquiry and submitted report dated 1.04.2009 holding Articles 1 and 2 of the charges as proved and Article 3 of the charge as partially proved.
3. Copy of inquiry report along with CVCs advice dated 26.05.2010, advising cut in pension, was served on the applicant vide memo dated 15.06.2010. The applicant sent his representation on 18.08.2010. Applicant has stated that since there was considerable delay, the applicant filed OA 1834/2012 on 21.05.2012 and this Tribunal passed order on 25.05.2012. It is further stated that while disposing of the OA at the admission stage, the Tribunal directed the respondents to either conclude the pending case within two months or pay the retirement benefits withheld so far. Since this order was not complied with, the applicant filed Contempt Petition No.406/2012. When the matter was listed on 18.09.2012, the respondents issued memorandum dated 4.09.2012 along with the UPSC advice dated 1.08.2012 imposing the penalty of withholding 25% of the monthly pension for a period of five years. In the present OA, the applicant has primarily challenged this penalty order and orders dated 27.04.2007, IOs report dated 1.04.2009 and CVC advice in OM dated 26.05.2010, praying that these orders be quashed and set aside and the respondents directed to issue Pension Payment Order for timely payment of pension and to release all retirement benefits. The grounds primarily raised are that the whole departmental proceedings suffer from several lacunae including non-application of mind, bias, error in the charge memo, false statements by the respondents, lack of knowledge on the part of the IO. In short, an unfair inquiry.
4. Heard both the parties.
5. The charge against the applicant relates to providing and fixing stepped wooden flooring in Auditorium of Lab building at AVRI Mukteshwar and equipping the Auditorium of renovated extension building with chairs. Notice Inviting Tender (NIT) was issued vide Press Notice dated 21.06.2006. Three contractors submitted applications. Shri Nihalani (applicant) rejected the application of one Shri R.K. Manglik and awarded the work to M/s Delite Hi Tech. Furniture Industries (P) Ltd. It was found that the work had actually been completed first before call of tenders and according to the department, the following irregularities were committed:
(i) Tenders were called after completion of work;
(ii) Tender of Shri R.K. Manglik was rejected without assigning any reasons; and
(iii) The rates quoted by lowest tenderer were 25.33% above the justified market rates.
6. The applicant admits that he had completed the work and thereafter invited tenders because there was an urgency in completing the work on time as some VIPs were to inaugurate that completed building on 27.05.2006 and since his seniors had pressurized him to get the work completed before that time, he had to get the work executed through the Agency available so as to complete the same before the inaugural function. To this extent, the applicant himself admits the charge. The main defence he is building is that he is an honest officer and has an outstanding career but his immediate superior Shri Shashi Kant, Superintending Engineer (SE) against whom he had made several complaints on corrupt practices was biased against him and, therefore, he orchestrated this inquiry, managed to get an IO of his choice appointed and influenced the inquiry. According to the applicant, when a very senior officer visited his jurisdiction once, he had asked the said officer to pay his boarding and lodging bills etc. which had enraged the said senior officer and since he was well disposed towards the SE, he got a chance to teach a lesson to the applicant when he came across a complaint by the SE. So his first ground is that this is vindictive action. It is also stated that memorandum dated 24.07.2007 was hurriedly issued without application of mind. Neither had CVC examined the issue in detail as the departments reference dated 24.04.2007 was cleared on 26.04.2007 with such promptness which is unheard of in the government. It is alleged that the respondents got angry because the applicant had got his transfer order stayed earlier by approaching the Allabahad Bench of the Central Administrative Tribunal and further the jurisdiction of SE was curtailed on the basis of the applicants complaint, therefore, the SE was annoyed with him. It is also the plea taken that the IO had at no stage of the inquiry till its conclusion posed a single question to the Charged Officer under Rule 14 (18) of the CCS (CCA) Rules which is conclusive proof that he had found nothing against him. The applicant also raises the issue that in Article 3 of the charge, the calculations shown are incorrect as the negotiated rate of Rs.3,71,379/- has been shown as higher by 1.003% to the amount based on prevalent market rate of Rs.3,70,403/- which was actually only 0.39% above the estimated cost. The question of time limit prescribed having been crossed by the respondents in the departmental inquiry was also raised as a ground for quashing the impugned orders. In short, the applicants case is that since he had complained against the SE and forced his superior officer to pay for his boarding and lodging, these officers became angry with him, framed him and ultimately succeeded in getting the penalty awarded. It is prayed that these being biased proceedings, need to be quashed.
7. Another argument raised on behalf of the applicant is that the applicant had not issued tender papers to Shri R.K. Manglik as the Chief Engineer had noted in his inspection note dated 9.09.2004 that no work be given to this Agency (R.K. Manglik) as it had failed badly in delivering timely construction.
8. The respondents in their reply firstly state that on his own admission, the applicant had called for tenders after the work was completed, therefore, he himself admits the guilt and the facts also show that the work of stepped wooden flooring was executed and completed before call of tender. Secondly, while there may be some dispute with regard to negotiated rate shown as higher by 1.003% or 0.39% but the fact remains that the applicant did award the contract at a rate higher than the rate fixed, albeit slightly higher. It has also been pointed out in the counter affidavit that the applicant was awarded penalty of `censure vide order dated 10.07.2006 on the charge that portion of compound wall of type IV quarters in Tihar Jail Campus collapsed at 3 locations because work was not completed by applicant as per the standard and specification. Similarly, a penalty of reduction to a lower stage in the time scale of pay by one stage for a period of one year without cumulative effect was imposed upon him vide order dated 5.01.2005 with a charge of poor construction at Tihar Jail. The respondents contend that from these an idea can be had about the applicants claim that he is an honest, upright and hardworking officer. The respondents state that they have followed all the due procedure i.e. consultation with CVC on the inquiry report and making available copy of inquiry report to the applicant so that he could make his representation. The applicant also raised the legal issue that as per judgment of the Honble Supreme Court, the department should have provided copy of UPSC advice before awarding penalty, which was not done. The respondents reply to this is that in a recent judgment of the Honble Delhi High Court in Union of India and anr. Vs. Biswabijoyee Panigrahi and anr., W.P. ) 4539/2012, referring to a judgment of the Honble Supreme Court in Union of India and anr. Vs. T.V. Patel, (2007) 4 SCC 785 which held that advice received from UPSC was not to be sent to the charged officer when report of the IO was forwarded for his response, the Honble High Court observed as follows:
19. Now, the constitutional vision pertaining to the role of UPSC is to confer upon it an advisory jurisdiction pertaining to disciplinary matters, which is evidenced from the use of the expression `may in sub-Article 3 of Article 320 of the Constitution of India. Opinions by UPSC on disciplinary matters are not binding on the Disciplinary Authority which has to apply its own independent mind as was explained in T.V. Patels case (supra). Now, logic and commonsense guides us that where an opinion has to be sought after Inquiry Officer records evidence and pens a report it would better serve the purpose of the person likely to be affected by such an opinion i.e. the charged officer, if before seeking the opinion his version is obtained and placed before the opinion maker. This would also be a better compliance with the principles of natural justice. This natural justice demands that it be made known to a person whose interest is in issue as to what is the material which would be used by the decision maker would not be attracted in a situation of the kind i.e. the decision maker who is seized with the report of an Inquiry Officer seeks advice of UPSC and the said advice sought is on the report of the Inquiry Officer without the response of the charged officer thereon.
20. This would be our additional reason to go by the law declared by the Supreme Court in T.V. Patels case which we find is a reasoned opinion.
9. The respondents further explained that on the question of tender not being given to Shri R.K. Malik, the order of the Chief Engineer could not be taken as order for not issuing tender papers until the Agency has been debarred by the competent authority/ Registering Authority. The respondents also made it clear that the applicant had been given full opportunity during the inquiry as can be seen from the facts that during examination-in-chief of PW-2, PO asked total 15 (Fifteen) questions and all were replied by PW2. In cross examination, applicant asked total 151 questions (One hundred and fifty one) and only 23 (Twenty Three) questions were overruled by I.O. on the request of P.O. because questions were irrelevant and out of chargesheet scope. P.O. asked to PW 1 total 5 (five) questions and all were replied. In cross examination, applicant asked total 71 (seventy one) questions and only 4 (four) questions were overruled by I.O. on the request of P.O. because question were irrelevant and out of chargesheet scope. Further complying with Rule 14 (18), I.O. provided opportunity to applicant to explain the circumstances appearing against him in the evidence if any by submitting his defence brief. Applicant availed this opportunity and submitted his defence brief vide letter dated 10.01.09 which consists of total 20 pages out of which 17 pages are his explanation and remaining 3 pages are photocopy of relevant rules etc. The respondents contend that all the above facts proved that sufficient opportunity was provided by I.O. to applicant for defending himself. It was further stated that some delay had been done by applicant himself when he requested I.O. vide Daily Order Sheet dated 18.06.08 and this delay by applicant has been concealed by him in this O.A. It is stated that before awarding of the contract for stepped wooden flooring etc., since the amount was beyond the scope of the applicant, he should have taken approval of the competent authority, which was the SE and there was no need for the applicant to manipulate the record to regularize the tender after executing the work from pre-selected contractor.
10. It is clear that there could be some dispute regarding the question of whether or not the applicant was right in not assigning the tender papers to Shri R.K. Malik given the order of the Chief Engineer. Further, the rate at which the chairs were obtained being marginally higher, one could give benefit of doubt to the applicant but the charge of completing the work even before award of tender is clearly breach of the rules. In fact, the applicant also admits that the work was indeed completed before the tender was called. So there is no doubt that this charge is proved.
11. The applicant has tried to make out a case that he is an honest and sincere officer and since he had complained against his SE and also forced the senior officer to pay for his boarding and lodging when he visited his jurisdiction, these officers ganged up against him and framed him. They tried to influence the inquiry and further that the CVC/ UPSC had not applied its mind. Lastly, the plea raised is that he was not given UPSC advice before the respondents passed the final order which is against the ratio laid down in the judgment of the Honble Supreme Court in S.N. Narula Vs. UOI and ors, (2011) 4 SCC 591 wherein it was held that the advisory opinion obtained from UPSC had to be communicated to the charged officer before the disciplinary authority inflicted the punishment and not after inflicting the punishment.
12. However, we find that in the latest judgment of the Honble High Court cited by the respondents, both S.N. Narula (supra) and T.V. Patel (supra) were examined by the Honble High Court and the view was taken that the ratio laid down by the Honble Supreme Court in T.V. Patels case was to be followed. We further find that ample opportunity had been given to the applicant to cross-examine the PWs, he was given opportunity to react to the IOs report and only thereafter a reasoned order has been passed withholding 25% pension for a period of five years. We find the claim of the applicant that he is very honest, upright and sincere officer to be exaggerated given the fact that he had been punished twice in the past, as pointed out by the respondents, for irregularities in the work executed by him.
13. It seems that having been issued a charge memorandum for lapses which he himself admitted, he has tried to build up a story that this is a case of victimization of an honest officer by the respondents. In the light of our observations above, we are not inclined to accept this contention. The OA is, therefore, dismissed. No costs. However, the respondents may consider reducing the punishment (quantum of deduction of pension) given the fact that there are no serious charges such as misappropriation, defalcation of government funds etc. ( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) /dkm/