Central Administrative Tribunal - Delhi
Shri Karamvir Singh vs Union Of India Through on 17 February, 2009
Central Administrative Tribunal Principal Bench OA No. 856/2008 New Delhi, this the 17th day of February, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Shri Karamvir Singh Assistant Engineer (Civil), O/o Chief Engineer, C.S.Q., Nirman Bhawan, New Delhi 110 011. Applicant (By Advocate: Shri Rakesh Khanna, Sr. counsel with Sh. Vinay Kumar Garg, Sh. Braham Dutt and Mr. F.A. Syed) Versus Union of India through: 1. Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi 110 011. 2. The Director-General (Works), Central Public Works Department, Nirman Bhawan, New Delhi 110 011. Respondents (By Advocate: Shri R.N. Singh with Sh. K.M. Singh) O R D E R Justice V.K. Bali, Chairman:
Karamvir Singh, applicant herein, who is Assistant Engineer (Civil) under the Director General (Works) Central Public Works Department, second respondent herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 challenging memorandum dated 28.03.2008 vide which chargesheet for the incident pertaining to the year 2002 has been issued to him, as also office order dated 09.04.2008 by which persons junior to him have been promoted to the next higher grade of Executive Engineer (Civil) omitting his name from promotion for ostensible reason of issuance of chargesheet dated 28.03.2008.
2. Brief facts on which the reliefs as mentioned above are sought to rest reveal that the applicant initially entered service on 14.11.1977 as direct recruit Junior Engineer (Civil). At that time he was diploma holder. Subsequently, he acquired degree in Civil Engineering and passed All India Competitive Examination conducted by Union Public Service Commission for promotion to the post of Assistant Engineer and was promoted as such. It is the case of the applicant that his initial appointment to the post of Executive Engineer was governed by Central Engineering Service (Group A) Recruitment Rules, 1954, which have since been replaced by the Ministry of Urban Affairs & Employment (Department of Urban Development), Central Engineering (Civil) Group A Service Rules, 1996 (hereinafter referred to Rules of 1996). While giving the rule position with regard to promotion to the next higher rank and the spate of litigation in this Tribunal and the High Court, and the reasons why the respondents are endeavouring to block the chances of the applicant for his next promotion, to which, in the context of limited controversy raised in the present case, we need not refer, the applicant pleads that the respondents issued memorandum dated 12.9.2007 for alleged incident that pertained to the year 2002-03. The memorandum levelled trivial allegations. The applicant on receipt of the memorandum aforesaid, pointed that since the incident pertained to the year 2002, he be supplied copies of relevant records. The applicant has also given some details with regard to progress of the enquiry in his endeavour to show that the same is being delayed, once again, to stall his promotion, with which as well, we are not concerned, once again for the reason that the applicant has raised only limited controversy at this stage. We may only refer to the articles of charge emanating from memorandum dated 28.3.2008, which read as follows:
Article-I Shri Karamvir Singh, AE allowed tampering of agreement item no.3(a) under agreement no.6/AE-III/PWDIV/2002-03 where item of making connection with GI Main of 25-40 mm was overwritten as 20-40 mm. An undue payment of Rs.10,049/- to the contractor Shri Gurnam Singh Chadha was made by him against this tampered item.
Article-II Shri Karamvir Singh, AE allowed fabricated entries of 400 meters dismantled GI Pipe 20 mm nominal bore and 180 meters dismantled GI Pipe 15 mm nominal bore at page 108 and 110 respectively of dismantle account register for the period 1.4.1986 to 31.3.2005 maintained by Shri M.S. Ansari, JE which was not carried over by the JE to the next dismantle account register for the period 2005-06 and allowed misappropriation of dismantled material. Thus, violated para 11.31 of CPWD Manual, Vol.II (Applicable at the relevant time).
Article-III Shri Karamvir Singh, AE failed to incorporate items of providing and filling sand grading zone-V or coarser grade around the GI Pipe in external work and painting GI pipe and fitting with 2 coats of anti-corrosive bitumastic paint of approved quality in the work of A/R & M/O Police Residential Building under E/O, Hauz Khas, New Delhi (SH: replacement of damaged GI pipes and fittings), awarded to Shri Gurnam Singh Chadha, Contractor on 27.05.2002 under agreement no.6/AE-III/PWD-IV/2002-03. The Technical Sanction of the work was accorded by him vide his office memorandum dated 2.5.2002 of CPWD specifications, 1996 (Volume-VI). Thus, he ignored a vital element of laying GI pipes (external work) which would affect the life and safety of the GI pipe lines replaced under this agreement. Thus he failed to ensure that the proposal was structurally sound and technically as per the requirements of CPWD Specifications, 1996.
Shri Karamvir Singh, Assistant Engineer, by his above acts of omission and commission failed to maintain absolute integrity, exhibited lack of devotion toduty and failed to take all possible steps to ensure the integrity of subordinate staff, thereby contravening provision of rules 3(1)(i), 3(1)(ii) and 3(2)(i) of CCS (Conduct) Rules, 1964.
3. Shri Rakesh K. Khanna, learned Sr. Advocate representing the applicant would, at this stage, only contend that disciplinary proceedings are initiated against the applicant as on the basis of complaint made by a contractor to CVC, the department without seeking comments/approval of CVC straightway started the disciplinary proceedings, which would be violative of provisions contained in Section 17 of the Central Vigilance Commission Act, 2003.
4. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing reply contested the cause of the applicant. It has inter alia been pleaded in the counter reply that a complaint made by contractor ER Gurnam Singh Chadha was forwarded by CVC vide their letter dated 2.9.2004 for further necessary action, and that the Engineer-in-Chief, PWD (GNCTD) also requested vide letter dated 7.4.2005 for appropriate action in the matter by vigilance unit. It is further pleaded that there were serious allegations against the applicant. The CE, PWD, Zone-IV was requested vide letter dated 15.6.2005 to send the relevant records/documents, and part documents were received vide letters dated 9.8.2005 and 4.9.2006. The EE, PWD, Div.-IV was further requested for balance and additional records vide letter dated 20.12.2006. The records were received from EE, PWD, Div.-IV vide his letters dated 2.3.2007, 4.6.2007 and 8.8.2007. The SE, DCC-I was requested for registration of M/s Delhi Construction Co. vide letter dated 20.12.2006. The same was received vide his letter dated 2.2.2007. During investigation, explanation memo were issued to Shri Parmanand, EE(C), the applicant, AE(C) and Shri M. S. Ansari, JE(C). It is the case of the respondents that the applicant has himself delayed the investigation process by unnecessary allegations against the investigating officer.
5. The applicant has filed rejoinder to the counter filed on behalf of the respondents.
6. We may mention that arguments in this case were heard on 16.10.2008 and the judgment was reserved. While, however, preparing the judgment, we found that proper pleadings with regard to the point as addressed by the learned counsel and as noted above, were not forthcoming. That being so, we passed the following order on 23.10.2008:
Arguments were heard in this case on 16.10.2008. During the course of arguments we were given to understand that the disciplinary proceedings were initiated against the applicant on the basis of a complaint made by the contractor to CVC and that the department without seeking comments/approval of the CVC had straightaway started the departmental enquiry. It was urged that the procedure adopted by the respondents was illegal and against Section 17 of the Central Vigilance Commission Act, 2003. While preparing the judgment, we, however, found from the counter reply that the respondents have admitted the fact insofar as complaint made by the Contractor to CVC is concerned, but there are no pleadings made to that effect even in the application nor there is further elaboration or pleadings that the opinion of the CVC was not sought. For that reason, we have listed this matter in the category For Being Spoken. Counsel for applicant is not present. List the matter on 31.10.2008. A copy of the order passed today be given to both the parties.
7. The applicant has filed an additional affidavit to which no reply has been filed, presumably for the reason that insofar as, the facts contained in the affidavit are concerned, there is no dispute. In para 4.9 of the OA it has inter alia been pleaded that Shri B. C. Joshi, investigating officer, and other interested persons in the department, wanted to somehow entangle the applicant in a departmental enquiry so as to block his chances of promotion in the year-wise DPCs held pursuant to the directions of the Honble High Court of Delhi, and that even though, separate memoranda were issued to the then Executive Engineer, the applicant and the Jr. Engineer concerned, the Executive Engineer being a Class-I officer could be proceeded against or exonerated only with prior permission of the Ministry and with the concurrence of CVC, and further that had this procedure been followed, cases of all the three officers, including the applicant, either for initiation of departmental enquiry or for dropping the allegations against them, would have to be necessarily referred to the Ministry and CVC. This, according to the applicant, would certainly be an exercise which could not have been completed before promotions order for the post of Executive Engineer are issued, and resultantly, it would not have been possible to block promotion of the applicant to the post of Executive Engineer. It is for this precise reason, it is pleaded, that the allegations against Shri Parmanand, the Executive Engineer were dropped at the level of the 2nd respondent itself, and before office order of promotion to the post of Executive Engineer was issued, memorandum dated 28.3.2008 was served upon the applicant on 2.4.2008. In the additional affidavit, it has also been pleaded that the respondents in their counter reply have taken a specific plea that the complaint which led to issuance of the impugned chargesheet against the applicant, was made by contractor Gurnam Singh Chadha directly to the CVC, who in terms of the powers conferred under the Act of 2003, vide letter dated 2.9.2004 made a reference thereon to the respondents. The impugned chargesheet has been issued by the respondents as a consequence of and upon an enquiry made on reference by the CVC in that behalf. This position, as mentioned above, is not in dispute and the respondents have themselves also mentioned in their counter reply that a complaint was made by contractor ER Gurnam Singh Chadha, which was forwarded by CVC vide their letter dated 2.9.2004 for further necessary action. With a view to appreciate the contention raised by the learned counsel, it would be necessary to refer to some of the salient features of the Central Vigilance Commission Act, 2003, and the relevant provisions touching upon the issue raised by the learned counsel. Central Vigilance Commission was set up by the Central Government by a resolution of 1964, for prevention of corruption. The resolution inter alia provided that in exercise of its powers and functions the Commission would not be subordinate to any Ministry/ Department, though it was attached to the Ministry of Home Affairs, Government of India, and would have the same measures of independence and autonomy as the Union Public Service Commission. In September, 1997, the Central Government constituted an independent review committee to suggest measures for strengthening inter alia anti-corruption activities as part of its efforts against corruption. The review committee recommended that the Central Government may consider the question of conferring statutory status to the Commission. Subsequently, the Honble Supreme Court vide order dated 18.12.1997 in Crl.WP Nos.340-343/1993 in the matter of Vineet Narain & others v Union of India & others gave directions that statutory status should be conferred upon the Commission. Eversince then, the Central Government had been promulgating ordinances till such time the Central Vigilance Commission Bill was passed in both Houses of the Parliament and received the assent of the President on 11.9.2003. The Act of 2003 thus came on the statute book on the said date. Functions and powers of CVC have been specified in Chapter III of the Act of 2003. In the present case, the Tribunal would be concerned only with functions and powers of CVC enumerated in clause (d) of sub-section (1) of Section 8 of the Act, which reads as follows:
(d) inquire or cause an inquiry or investigation to be made into any complaint against any official belonging to such category of officials specified in sub-section (2) wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988 (49 of 1988) and an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial; Provisions contained in clause (d) of sub-section (1) of Section 8 would thus reveal that the CVC can enquire itself or may cause an enquiry or investigation to be made. The enquiry or investigation to be made has, however, to be with regard to category of officials specified in sub-section (2) of Section 8. Sub-section (2) of Section 8 reads as follows:
(2) The persons referred to in clause (d) of sub-section (1) are as follows:-
members of All-India Services serving in connection with the affairs of the Union and Group A officers of the Central Government;
such level of officers of the corporations established by or under any Central Act, Government companies, societies and other local authorities, owned or controlled by the Central Government, as that Government may, by notification in the Official Gazette, specify in this behalf:
Provided that till such time a notification is issued under this clause, all officers of the said corporations, companies, societies and local authorities shall be deemed to be the persons referred to in clause (d) of sub-section (1). The CVC has brought out Vigilance Manual. The same, however, is not to be a substitute for reference to the concerned rules and orders issued by the Government, but deals with various aspects like, organization, appointment and role and functions of CVO, complaints, preliminary enquiry/investigation, facilities and cooperation to be extended by administrative authorities to CBI during investigation of cases, and suspensions. The Manual consists of six Chapters. Para 3.4.1 of Chapter III of the Manual inter alia deals with situations where a complaint involves both categories A and B employees. The same reads as follows:
3.4.1 Every Vigilance Section/Unit will maintain a vigilance complaints register in Form CVO-1, in two separate parts for category A and category B employees. Category A includes such employees against whom Commissions advice is required whereas category B includes such employees against whom Commissions advice is not required. If a complaint involves both categories of employees, it should be shown against the higher category, i.e., category A. Provisions of Section 17 of the Act of 2003 read as follows:
17. Report of any inquiry made on reference by Commission to be forwarded to that Commission. - (1) The report of the inquiry undertaken by any agency on a reference made by the Commission shall be forwarded to the Commission.
(2) The Commission shall, on receipt of such report and after taking into consideration any other factors relevant thereto, advise the Central Government and corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government, as the case may be, as to the further course of action.
(3) The Central Government and the corporations established by or under any Central Act, Government companies, societies and other local authorities owned or controlled by that Government, as the case may be, shall consider the advice of the Commission and take appropriate action:
Provided that where the Central Government, any corporation established by or under any Central Act, Government company, society or local authority owned or controlled by the Central Government, as the case may be, does not agree with the advice of the Commission, it shall, for reasons to be recorded in writing, communicate the same to the Commission.
8. The complaint made by contractor ER Gurnam Singh Chadha, it may be recalled, was forwarded by CVC vide its letter dated 2.9.2004 for further necessary action. It is the case of the applicant, not disputed at any stage and emanating from the counter reply as well, that the said complaint pertained to three officers, namely, Shri Parmanand, EE(C), the applicant, AE(C) and shri M. S. Ansari, JE(C). It is the pleaded case of the respondents that during investigations, explanation memos were issued to the aforesaid three persons. Admittedly, insofar as Shri Parmanand, EE is concerned, he is category A employee. It is thus made out from the pleadings made by the parties that in the complaint lodged by the contractor, allegations were against both categories A and B officials. It is the case of the applicant that the allegations against Shri Parmanand, the Executive Engineer were dropped at the level of 2nd respondent itself, and before office order for promotion to the post of Executive Engineer was issued, the applicant received memorandum dated 28.3.2008. It is also his case that the procedure to be adopted was overlooked as that would have involved delay and the applicant could not have been ignored for promotion to the post of Executive Engineer.
9. Perusal of provisions contained in Section 17 of the Act of 2003 would clearly manifest that the report of the enquiry undertaken by any agency on a reference made by CVC, which, it is clear, was made in the present case, as fully detailed above, has to be forwarded to CVC, and on receipt of the report and after taking into consideration any other factors relevant thereto, CVC shall advise the Central Government and corporations etc. as to what further course of action has to be adopted. The charges levelled against Shri Parmanand, Executive Engineer have been dropped at the level of the 2nd respondent itself, but that, in our view, also could not be done unless advice of CVC was obtained as per the mandate of law contained in sub-sections (1) and (2) of Section 17. We are, however, not concerned with Parmanand, the Executive Engineer, but surely, inasmuch as the complaint was with regard to both categories A and B employees, before any action could be taken against the applicant, advice of CVC had to be obtained. This was admittedly not done. For violation of mandatory procedure as mentioned above, further proceedings against the applicant have to be held as illegal. There is absolutely counter argument to the contention raised by the learned counsel representing the applicant either in the pleadings or during the course of arguments. We may, however, mention that Shri R. N. Singh, learned counsel representing the respondents, without disputing the factual position or the applicability of the procedure prescribed in Section 17 of the Act of 2003, has, however, urged upon the basis of para 3.7 of the Vigilance Manual that even though, complaints received by the Commission have to be registered and examined initially in the Commission, but the Commission may decide, according to the nature of each complaint, whether it merits any action or not and thus may be filed; or whether it should be sent to the concerned administrative Ministry/Department for disposal, or for enquiry and report; or whether it should be sent to CBI for secret verification or detailed investigation; or whether the Commission itself should undertake the enquiry. Para 3.7 of the Manual reads as follows:
3.7 Complaints received in the Central Vigilance Commission will be registered and examined initially in the Commission. The Commission may decide, according to the nature of each complaint, that (i) it does not merit any action and may be filed, or (ii) it should be sent to the administrative Ministry/Department concerned for disposal, or for inquiry and report, or (iii) it should be sent to the Central Bureau of Investigation for secret verification or detailed investigation, or (iv) the Commission itself should undertake the inquiry. [[ Learned counsel representing the respondents contends that once, the CVC on a complaint received by it, if may not choose to file the same, and may send it to the concerned department for disposal, there would be no need for the department to seek its advice when the CVC itself chooses to send the matter for disposal. We have given our thoughtful consideration to the contention raised by the learned counsel as noted above, but, for variety of reasons, find no merit therein. In the first instance, for applicability of para 3.7 of the Manual, it has to be the case of the respondents, that the CVC had sent the complaint to the respondent department for its disposal. In the counter reply filed on behalf of the respondents it has inter alia been pleaded that the complaint made by the contractor was forwarded by CVC vide letter dated 2.9.2004 for further necessary action. It would clearly imply that CVC had not adopted the procedure of disposal of the complaint at the end of the department itself. With a view, however, to ensure the factual position, we required the learned counsel representing the respondents to make the records, and in particular letter dated 2.9.2004 of CVC, available to us. The counsel had given us some records, but the same did not contain any noting made by the respondent department on receipt of letter dated 2.9.2004 from CVC, nor the letter itself. However, when the matter was re-heard and judgment once again reserved, the respondents filed an additional affidavit dated 23.12.2008. Counsel for the applicant was appraised of this additional affidavit vide our order dated 24.12.2008. It is mentioned in the affidavit aforesaid that complaint dated 6.8.2004 was received vide CVC letter dated 2.9.2004 for necessary action, said to be marked as Flag A. It is further mentioned that the correspondence portion is being produced with the affidavit. It is further mentioned that pursuant to aforesaid complaint, investigation was got conducted and report dated 21.2.2008, Annexure-II is being submitted, marked as Flag B, which would indicate non-involvement of any Group-A officer. In view of the report referred to above, the matter is said to have been considered by the competent authority at Flag C, and that the competent authority approved the investigation report vide note dated 27.2.2008. We are sorry to observe that even though, it has been mentioned in the affidavit that the same accompanies correspondence/notings marked as Flags A, B and C, but the same are not attached therewith. Be that as it may, nothing is disclosed even now either from the mentioned record in the affidavit or any noting that might have been made by the respondent department on receipt of letter dated 2.9.2004 from CVC. Reference is only to complaint dated 6.8.2004 received vide CVC letter dated 2.9.2004, and report dated 21.2.2008 and consideration and approval thereof by the competent authority vide note dated 27.2.2008. Even if Flags A, B and C were to be produced on records, the same would not have advanced the case of the respondents. From non-production of the relevant record, a presumption has to be drawn that had the same been produced, it would have gone against the respondents. That apart, what appears to us is that para 3.7 of the Manual conferring power on CVC to adopt either of the procedures as envisaged therein, insofar as disposal of the complaint at the end of the department is concerned, would be applicable only with regard to category B officials, as otherwise the provisions of sub-sections (1) and (2) of Section 17 of the Act of 2003 would become redundant. A harmonious construction of the provisions contained in Section 17 and para 3.7 would also lead to the same conclusion. Still further, the Vigilance Manual, as mentioned above, is not a substitute for reference to the concerned rules and provisions contained in the Act of 2003. The manual only provides guidance on various aspects enumerated above. Once, a set procedure has been enumerated under statutory rules, the same cannot be overturned on the basis of instructions or guiding principles enumerated under the Vigilance Manual.
10. For the reasons mentioned above, this Application has to be partly allowed. All proceedings against the applicant, inclusive of charge memo dated 28.3.2008, after receipt of the complaint by the respondent department from CVC have to be set aside. We order accordingly. The respondents shall, however, be at liberty to proceed against the applicant in accordance with law, and if CVC may opine that there is a case made out against him for departmental proceedings, to initiate proceedings against the applicant. If CVC may opine that no case is made out, the department may still further proceed against the applicant, but in that case the department has to disagree with the advice of CVC for reasons to be recorded in writing and communicating the same to the applicant. In the facts and circumstances of this case, we make costs of the litigation easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/