Central Administrative Tribunal - Bangalore
M Vijaya Kumar vs Railway Board on 21 March, 2022
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OA.No.170/00432/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00432/2021
ALONG WITH MA.NOs. 412/2021, 528/2021 AND 529/2021
ORDER RESERVED ON: 24.02.2022
DATE OF ORDER: 21.03.2022
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh Bench
at Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore Bench at
Bangalore)
M. Vijaya Kumar,
S/o M. Munirathnam,
Aged about 62 years,
(Retd. Dy. Chief Engineer/Construction/ SW Rly.)
R/o F 403, Abodh Valmark Apartment,
Veerannapalya Main Road,
Govindpur,
Bengaluru-560045. ....Applicant
(By Advocate Shri R.P. Somashekaraiah - through video conference)
Vs.
1. Sri S.K. Sharma,
Dy. Secretary/E(O) I
Railway Board,
Rail Bhavan,
New Delhi-110001.
2. The General Manager,
South Western Railway,
Club Road, Keshavapur,
Hubli-580023.
3. The Central Vigilance Commission,
Rep. by its Director,
Central Vigilance Commission,
New Delhi-110001.
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OA.No.170/00432/2021/CAT/Bangalore Bench
4. Chief Administrative Officer (Construction),
South Western Railway,
No.18, Millers Road,
Bengaluru Cantonment,
Bengaluru-560046.
5. The Financial Adviser &
Chief Accounts Officer,
(Construction),
South Western Railway,
No.18, Millers Road,
Bengaluru Cantonment,
Bengaluru-560046.
6. The Chief Vigilance Officer,
South Western Railway,
Gadag Road,
Hubli-560023.
7. The Deputy Chief Engineer (North)
(Construction)
No.18, Millers Road,
Bengaluru-560046.
....Respondents
(By Advocate Shri J. Bhaskar Reddy- through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:
"To quash the impugned order passed by Respondent No.1, dated 19.07.2021 in No. E(O)I-2021/PU-2/SWR/42 and the memorandum along with Articles of charges, Imputation charges, list of documents and List of witnesses dated 19.07.2021 under Annexure A-1."3
OA.No.170/00432/2021/CAT/Bangalore Bench
2. In addition to the present Original Application, the following Miscellaneous Applications have also been filed by the applicant.
a) MA.No.412/2021 seeking deletion of name of Respondent No.3 from the array of respondents.
b) MA.No.528/2021 seeking advancement of hearing in the case from 27.01.2022 to 24.12.2021.
c) MA.No.529/2021 seeking grant of stay of the proceedings pursuant to the orders dated 06.12.2021 appointing Shri S.K. Gupta, Retired Director, IRIDM, as Enquiry Officer to enquire into the charges framed against the applicant (Annexure A12) and appointing Shri Md. Zafar Iqbal, CVI/Engg/SWR as the Presenting Officer (Annexure A13), to present the case in support of the charges before the Enquiry Officer.
3. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was working as Dy. CE/North-II/BNC/Construction, South Western Railway. He was entrusted with the work of Road Over Bridge (ROB) in lieu of LC No.32 at Doddaballapur. This work was taken up under cost sharing basis with the State Government (Govt. of Karnataka). The construction site was situated at busy National Highway NH-207 at Doddaballapur Town passing through Municipality crossing Arkavathi from two lane to four lane wide road. Sufficient land 4 OA.No.170/00432/2021/CAT/Bangalore Bench was not available on either side, therefore GAD had approved for constructing the ROB on same alignment of the existing road to minimise land acquisition. It was, therefore, not possible to install huge concrete mixing plant, since the work was being done adjacent to the busy National Highway passing through private land and Arkavathi River on either side. Therefore it was decided to use movable concrete machine (AJAX), the concrete mixing plant, since AJAX portable mini plant is as good as any other machine producing plant.
b) The applicant on superannuation, retired from service on 31.3.2019.
Respondent No.6 issued a letter dated 23.11.2020 calling upon the applicant to give explanation with regard to the excess amount paid to the contractor with regard to the installation of the concrete machine. The applicant replied factually to this letter on 16.12.2020.
c) Respondent No.1 issued order dated 19.7.2021 along with a charge memo against the applicant containing the following Articles of charges:
Article of Charge-I He has not ensured the installation of weigh batching plant for the concreting work in deviation with stipulation of contract and also not deducted the payment at the rate of 10% on the base rate for this deviation.
He has paid additional Rs.500/- per cum for the concrete supplied from RMC plant whereas the same was to be supplied by the contractor by installation of weigh batching plant at the site as per tender conditions without additional cost.5
OA.No.170/00432/2021/CAT/Bangalore Bench Due to these acts of omissions and commissions by him, excess payment of approx. Rs.56.05 lakhs was made to contractor and resulted into financial loss to Railway.
Article of Charge-II He has not ensured the quality of concrete in the work as per contract provisions. Unsatisfactory Laboratory test reports of the concretes in the work, indicate that the concrete of lesser strength was accepted by him against the strength of concrete for which he had made the payment.
He as Engineer-in-charge of the work, has not ensured the proper execution of wok under this agreement UCC 74004, which has resulted into construction defects like honeycombing, cracks, shabby repairs at various locations.
Due to this act of omission and commission by him, substandard quality of concrete work was executed in the agreement and safety of the public is put at the risk.
By the aforesaid act Shri M. Vijaya Kumar, Retired Dy. CE/North/BNC, South Western Railway has failed to maintain absolute integrity, devotion to duty and had acted in a manner unbecoming of a Railway servant, thereby contravened Rule 3(1),
(ii) & (iii) of Railway Services (Conduct) Rules, 1966.
d) Subsequent to receipt of charge memorandum dated 19.7.2021, the applicant, replied in detail along with requisite documents vide letter dated 09.8.2021 requesting to drop the charges made against him.
e) The applicant has further stated that the dispute now raised by the respondents with regard to this work, had commenced in the year 2015 and concluded in the year 2018. The respondents had completed all the 6 OA.No.170/00432/2021/CAT/Bangalore Bench formalities and had been given a clean chit and also permitted the applicant to retire peacefully from service. Once they have given clean chit, it is not open to the respondents to initiate any disciplinary action against the retired employee.
f) As per the Master circular issued by Indian Railways regarding initiation of proceedings after retirement, the rule regarding proceedings after retirement is reproduced below:
21(b): "If on the date of retirement of an employee, he is neither suspended nor charge-sheet issued to him, then proceedings against him can be instituted only with the President's approval. In such cases, the charge-sheet is issued on behalf of the President, and it cannot be issued in respect of any offence which had taken place more than 4 years before the issue of the charge-sheet."
g) In the present case, the work was initiated on 30.7.2015 and the proceedings have been initiated in the year 2021, after retirement.
Therefore, the incident is beyond 4 years and as such initiation of departmental proceedings is bad in law and liable to be quashed.
4. The respondents have filed their written statement wherein they have averred as follows:
a) The applicant was Engineer-in-charge of work entrusted to him under agreement LOA No.496/DBU-ROB 32/01 dated 30.07.2015 (UCC- 74004). As per para 129 & 1117 of engineering code, duty of Engineer-
in-charge is stipulated as "Engineer-in-charge should arrange for the proper execution of work in his division and superintend the works. He 7 OA.No.170/00432/2021/CAT/Bangalore Bench is responsible for the punctual execution of orders issued by the CAO/ Construction/ Chief Engineer (Construction)/ Chief and the Engineer in charge of the work is responsible for the proper execution of a work by whatever agency it may be carried out. He should, therefore, make inspection as frequently as necessary or possible, supply his assistants and subordinates with such detailed instruction as may, from time to time, be necessary and see to it that the instructions are complied with."
b) The applicant was Engineer-in-chief of the subject work from 05.08.2014 to 31.03.2019. The charge memorandum has been issued on 25.06.2021, which is within the period of 4 years prescribed for initiation of departmental proceedings as per pension rule, with President's approval. Railway Board issued the charge memorandum by order and in the name of the President, as mentioned in the charge memorandum issued by Director /E(O)I, Railway Board vide memorandum No. E(O)I-2021/PU-2/SWR/42 dated 25.06.2021 and therefore, no procedural lapse is done in the process of issuing the charge memorandum.
c) The charge memorandum is not a penalty advice. The applicant shall be given fair opportunity to prove his innocence during departmental enquiry proceedings formed by disciplinary authority.
d) The applicant himself has admitted that he was in charge of the subject work from 05.08.2014 to 31.03.2019, in his reply to questionnaire in connection with Chief Technical Examiner/ Central Vigilance Commission for question No.2 vide letter dated 16.12.2020. 8
OA.No.170/00432/2021/CAT/Bangalore Bench
5. In the rejoinder to the reply filed by the respondents, the applicant has stated the following:
a) It is incorrect to say that the applicant was in charge from 05.08.2014 to 31.3.2019. The said work LOA was issued on 30.7.2015. The charge sheet was issued to the applicant on 26.7.2021, after retirement. The work had started on 12.08.2015 and the agency has established the required setup and the non-provision of concrete plant was well established and concreting through mobile batching plant (AJAX) has been in progress and the bills have been recorded in CC-3 and part dated 26.04.2016. The work done was measured and recorded in the measurement book and bills have been prepared and payments have been approved by the competent authority and checked by finance and paid to the agency. Similarly, the extra payment of Rs.500/- cum, for the work done has been recorded in CC-4 and paid in CC-5 dated 28.06.2016. The incidents of passing the payments to the contractor is the cause of action/ offence of the said cause which have taken place on 28.06.2016, which is more than 4 years from the date of charge memorandum dated 26.7.2021.
b) As per the procedure in vogue in Railways, there is no guidance to issue charge sheet to the employee on completion of the work. Further the applicant was in charge of the said work in 2015 and from 2017 he was Dy.CE /North/II/CN/BNC for various other works under CE/CN/BNC. The charge sheet should have been issued during the course of the said work or before retirement of the applicant. Since the cause of action 9 OA.No.170/00432/2021/CAT/Bangalore Bench started on 08.06.2016, as mentioned supra the charge sheet issued is illegal and violation of natural justice. The applicant has not conducted any grave misconduct in connection with the said work.
6. Heard learned counsels for the parties and perused the pleadings made by them.
7. The applicant, in his pleadings, has argued, that the cause of action on the basis of which the charge memo has been filed, involved alleged extra payment of Rs. 500/- per cum meter of concrete for the civil works, as well as non-deduction of 10% from the bills on account of non-provision of concrete weigh-batching plant on site. The payments of these bills had been made on 28.6.2016 and 26.4.2016 respectively. These payments to the contractor concerned, had taken place more than four years ago from the issuance of the charge memorandum dated 26.7.2021. The applicant had retired on 31.3.2019. Hence, as per the Master Circular issued by Indian Railways regarding initiation of proceedings after retirement, the charge sheet issued to him for an alleged misconduct which had taken place more than 4 years before the issuance of charge sheet, cannot be sustained.
8. The respondents, in their reply, have stated that the applicant was in-charge of the work from 05.8.2014 to 31.3.2019 and it was during the course of this period that the alleged mis-conduct/ irregularities in the said work were noticed, which are now the subject matter of the inquiry. Hence the charge memorandum, according to the respondents, issued on 25.6.2021, is well within the period prescribed for initiation of disciplinary proceedings with the approval of the President. The respondents have further stated that the 10 OA.No.170/00432/2021/CAT/Bangalore Bench charge memorandum is not a penalty advice. The applicant shall be given a fair opportunity to prove his innocence during the Departmental Enquiry proceedings initiated by the Disciplinary Authority.
9. As far as the alleged misconduct/ irregularities mentioned in the charge memorandum, and the defence provided by the applicant in reply to the charge memorandum are concerned, these are the subject matter of an enquiry by the Disciplinary Authority. It would, therefore, be premature, at this stage, to go into the relative merits/demerits of the case relating to the charges mentioned in the charge sheet, issued against the applicant.
10. The primary issue which requires consideration by this Tribunal, at this stage, is whether the charge memorandum has been issued within a period of 4 years from the date of cause of action of the alleged misconduct/irregularities, which are the subject matter of the enquiry.
11. A careful perusal of the charge memorandum indicates that the alleged misconduct by the applicant relates to the following issues:
a) Failure to ensure adherence to the contractual obligations by the contractor, and failure to deduct an amount at the rate of 10% on the base rate for the deviation of not providing a weigh batch concrete mixing plant at site.
b) Allegedly allowing an additional amount of Rs. 500/- per cum for the concrete supplied from RMC plant, which was supposed to be supplied by the contractor by installation of concrete weigh batching plant at site.11
OA.No.170/00432/2021/CAT/Bangalore Bench
c) Not ensuring the required quality of work and as in-charge of work, not ensuring proper execution of work, which allegedly resulted in construction defects.
12. A careful perusal of these charge indicates that these relate to the entire work supervised by the applicant for the period when he was in-charge of the work that is from 05.8.2014 to 31.3.2019. It cannot be presumed that the charges relate only to payment of two bills for the work done by the contractor as contended by the applicant. It would, therefore, be not correct to relate the alleged misconduct only to the dates of two specific bills which had been passed relating to the work.
13. The charge memorandum relates to the alleged failure in supervision, as well as to certain decisions relating to execution as well as payments for the entire work. Hence the alleged misconduct has to be counted for the entire period when the work was under the supervision of the applicant.
14. The alleged misconduct, in the present case, therefore, relates to the entire period when the work was under the supervision of the applicant i.e from 05.8.2014 to 31.3.2019. The date of issuance of charge memorandum is 25.6.2021, which is, therefore, well within the prescribed period of limitation of 4 years.
15. Keeping the above in view, the contention of the applicant, that the alleged charge memorandum issued by the respondents, is in violation of the rule 21(b) of the Master Circular issued by the Indian Railways, prohibiting issuance of charge sheet in case of a retired officer, for any misconduct 12 OA.No.170/00432/2021/CAT/Bangalore Bench which allegedly took place more than 4 years before the issuance of the charge sheet, cannot be accepted.
16. The prayer of the applicant to quash the charge sheet dated 19.7.2021, on grounds of limitation of 4 years, is, therefore, without any merit and cannot be allowed.
17. The Original Application is accordingly dismissed.
18. Since the Original Application has been dismissed, hence the Miscellaneous Application Nos. 412/2021, 528/2021 and 529/2021 are also dismissed, having been rendered infructuous.
19. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
/vmr/