Central Administrative Tribunal - Delhi
Shri S.C. Gupta vs Union Of India on 4 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA 452/2002 with OA 453/2002 NEW DELHI THIS THE 4th DAY OF JULY, 2011 HONBLE MR. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) O.A. 452/2002 Shri S.C. Gupta, S/o Shri Hem Chand Gupta R/o J/36-C, Phase-I, Ashok Vihar, Delhi-110052 Applicant (By Advocate: Shri S.K. Gupta) Versus 1. Union of India, Through Secretary, Ministry of Water Resources, Sharam Shakti Bhawan, New Delhi. 2. Lt. Governor of Delhi, Govt. of NCT of Delhi, Raj Niwas, Delhi. 3. Chief Secretary, Govt. of NCT of Delhi, I.G. Stadium, I.P. Estate, New Delhi. 4. Chief Engineer , Irrigation & Flood, IVth floor, I.S.B.T Building Kashmere Gate, Delhi. Respondents. (By Advocate:Sh. N.K. Singh for Mrs. Avnish Ahlawat) O.A. 453/2002 Upendra Agnidev, S/o Shri Pershu Ram Sharma R/o D.G. I/25-A, Vikaspuri, New Delhi. Applicant (By Advocate: Shri S.K. Gupta) Versus 1. Union of India, Through Secretary, Ministry of Water Resources, Sharam Shakti Bhawan, New Delhi. 2. Lt. Governor of Delhi, Govt. of NCT of Delhi, Raj Niwas, Delhi. 3. Chief Secretary, Govt. of NCT of Delhi, I.G. Stadium, I.P. Estate, New Delhi. 4. Chief Engineer , Irrigation & Flood, IVth floor, I.S.B.T Building Kashmere Gate, Delhi. Respondents. (By Advocate:Sh. N.K. Singh for Mrs. Avnish Ahlawat) ORDER
Shri George Paracken:
This is the second round of litigation by both the applicants and their cases are identical except for the fact that the applicant in OA No.452/2002 Shri S.C.Gupta was an Assistant Engineer working in Supplementary Drainage Sub-Division, Govt. of NCT of Delhi and applicant in OA-453/2002 Shri Upendra Agnidev was a Junior Engineer in the same office.
2. In the statement of imputation attached with the article of charge, involvements of several officers were indicated. The charge against the applicant Shri S.C. Gupta, as the Sub-Divisional Officer, who was in-charge of the work, was that he did not perform his duty well as the In-charge of the execution of the construction of Bridge. The article of charge against him is as under:
That Shri S.C. Gupta, while working as Assistant Engineer, Supplementary Drainage Sub-Division, Delhi Administration, Govt. of NCT of Delhi during the period from 25.2.1992 to 13.1.1994 was in-charge of execution of the construction of Bridge at RD 30825 M on the Supplementary Drain (near Ranhela Village) and that cracks have developed in the bridge and that one span of the bridge has collapsed and therefore, the said Shri S.C. Gupta has failed to:
a. maintain devotion to duty and absolute integrity: and b. take suitable steps to ensure devotion to duty of Govt. Servants for the time being under his control and authority.
3. The Article of charge in respect of Sh. Upendra Agnidev, is also the same except for the b part of the aforesaid charge. It reads as under:
That the said Shri Upendra Agnidev while working as Junior Engineer, under supplementary drainage sub division-IV, from 27.8.90 to 16.11.92 was in-charge of construction of bridge at RD 30825 M on supplementary drain (near Ranhola Village) and that cracks have developed in the bridge and that one span of the bridge has collapsed and therefore, the said Shri Upendra Agnidev has failed to:
a. maintain devotion to duty and absolute integrity and
4. The Enquiry Report dated 30.05.1998 in respect of Shri S.C. Gupta, AE says that the charge against him was proved. The relevant part of the report is as under:
In Ex. S-4 it is reported that the total structure is of poor quality and it is fair that the first span on the left side may continue to sag even without load. In the deposition of PW-1, Ex. S-3 was confirmed and also he confirmed that the concrete was weak and was liable to collapse. Further he added that many of the concrete samples had honey combing and voids proving that the concrete had not been compacted well resulting into reduction in the strength of the concrete. PW-2 confirmed Ex.S-5. Ex. S-5 is the letter addressed to the Development Commissioner Govt. of NCT of Delhi. According to it, it is reported that ,it appears that due to poor quality of concrete, the failure occurred. In the deposition of PW-5 it was confirmed that the bridge was open for traffic but subsequently it was closed due to the cracks developed in the bridge. Thus, the article of charge against the CO is established.
V. FINDINGS
16. In conclusion on the basis of the oral and documentary evidences and written briefs of the PO and the CO adduced during the proceedings, following are the findings:
Article of Charge : PROVED.
5. Similarly, in the case of Shri Upendra Agnidev, JE, the Enquiry Officer submitted an almost identical report and its operative part reads as under:
In Ex. S-4 it is reported that the total structure is of poor quality and it is a fact that the first span on the left side may continue to collapse even without load. In the deposition of PW-1, Ex. S-3 was confirmed and also he confirmed that the concrete was weak and was liable to collapse. Further he added that many of the concrete samples had honey combing and voids proving that the concrete had not been compacted well resulting into reduction in the strength of the concrete. PW-2 confirmed Ex.S-5. Ex. S-5 is the letter addressed to the Development Commissioner Govt. of NCT of Delhi. According to it, it is reported that,it appears that due to poor quality of concrete, the failure occurred. In the deposition of PW-5 it was confirmed that the bridge was open for traffic but subsequently it was closed due to the cracks developed in the bridge. Thus, the article of charge against the CO is established.
V. FINDINGS
16. In conclusion on the basis of the oral and documentary evidences and written briefs of the PO and the CO adduced during the proceedings, following are the findings:
Article of Charge : PROVED.
6. The disciplinary authority in the case of both the applicants passed identical but separate orders dated 11.1.2001 imposing the punishment of compulsory retirement upon them and the operative part of its order in respect of the Applicant in OA-452/2002 Shri S.C.Gupta is as under:
Considering the serious gravity of lapse on the part of Shri S.C. Gupta and all other facts and circumstances of the case, I am of the view that imposition of the penalty of compulsory retirement from service upon him would meet the ends of justice. I order accordingly.
7. The appellate authority has also upheld the aforesaid orders of the disciplinary authority in both cases vide its order dated 4.10.2001.
8. The applicants have challenged the aforesaid orders of the disciplinary authority as well as the Appellate order before this Tribunal on various grounds vide OA No.452/2002 and OA No.453/2002. This Tribunal vide its common order dated 6.4.2004, partly allowed the OA and its operative part is as under:
Having regard to the reasons recorded above, O.As are partly allowed. Impugned penalty and appellate orders in both the O.As are set aside. As a result, the respondents are directed to forthwith reinstate the applicants in service. However, this shall not preclude them from proceeding further in the disciplinary proceedings against them if so advised from the stage of supplying the copy of CVC report. The intervening period shall be regulated by the respondents as per FR and the orders to that effect shall be issued within three months from the date of receipt of a copy of this order. No order as to costs.
9. The respondents had filed the Review Applications No. 214/2004 in OA-453/2002 and 215/2004 in OA-452/2002 and they were also dismissed by the Tribunal vide order dated 10.08.2004. Aggrieved by the aforesaid Original Order as well as the Order in Review Application of this Tribunal, the respondents approached the Honble High Court of Delhi vide Civil Writ Petition Nos.18387/2004 & 18395/2004 but the Honble Delhi High Court vide its Order dated 29.9.2010 remanded both the OAs to this Tribunal on the ground that The Tribunal has dealt with only two pleas, i.e., the two technical pleas and has not dealt with the pleas of substance urged in para 4.12 and 4.16 and the corresponding grounds urged in para 5.1 (with the sub-paras), 5.4 and 5.5 of the Original Application. The operative part of the said Order is as under:
14. The Tribunal has remanded the matter with a direction that the inquiry officer should examine the respondents as per the mandate of Rule 14(18) of the CCS(CCA) Rules and additionally that the Disciplinary Authority should supply the CVC advice rendered to the department pertaining to the penalty to be levied.
15. Now, if the respondents can make good the contentions urged by them in para 4.12 and para 4.16 and the Grounds urged in para 5.1, 5.4 and 5.5 of the Grounds, that would mean that the entire inquiry report stands vitiated and it would be a case of denial of fair opportunity of defence as also a case of the inquiry officer ignoring material evidence.
16. Now, if we allow the two writ petitions and set aside the findings returned on the two pleas as afore-noted, we would be compelled to restore the two Original Applications for adjudication on the other issues which were urged by the respondents, but have not been dealt with, and which issues strike at the very root of the matter. If we dismiss the writ petitions, it would mean that the department would have to rectify the two deficiencies pointed out by the Tribunal, but we would be compelled to hold that other pleas would be open to be urged, should the Disciplinary Authority still inflict a penalty upon the respondents.
17. Either situation would prolong the further litigation, which is inevitable, because of the reason the Tribunal has ignored the mandate of law which requires all issues to be decided and not only a few.
18. In our opinion leaving open the two issues of substance which were raised by the respondents which have not been decided by the Tribunal would mean that a futuristic battle would obviously be fought.
19. The best solution would be to note whether the Tribunal has covered the entire sweep of the span of the two technical issues decided by it, for if not done, the matter would be required to be remitted to the Tribunal for a decision on all four issues raised.
20. Noting that two issues have not been dealt with by the Tribunal at all and which go to the root of the matter, we note that pertaining to non-compliance with Rule 14(18) of the CCS(CCA) Rules 1965, the Tribunal has not adjudicated whether non-compliance with the Rule has prejudiced the defence and especially when we look to the pleadings in para 4.12 and para 4.16 and the relatable Grounds urged in para 5.1, 5.4 and 5.5 and as noted above. We note that in the decision reported as 1980(3) SCC 304 Sunil Kumar Banerjee vs. State of West Bengal & Ors, non-adherence to Rule 8(19) of the All India Service Disciplinary Rules 1969, which is pari material with Rule 14(18) of the CCS(CCA) Rules 1965 was held to be non-fatal except upon prejudice caused being shown. A somewhat discordant note has been struck by the Supreme Court in the decisions reported as 2008 (3) SCC 484 Moni Shankar vs. UOI & Anr. and 1998 (3) SCC 227 Ministry of Finance & Anr. vs. S.B.Ramesh.
21. On the issue of CVC advice not being disclosed to the respondents, the Tribunal has noted the decision of the Supreme Court reported as JT 1992 (6) SC 673 State Bank of India vs. D.C.Aggarwal, but has not factored the fact that the advice by CVC was to dismiss the respondents from service but the Disciplinary Authority has levied a penalty less than what was advised by the CVC and in this context has not considered whether any prejudice was caused.
22. Accordingly, we hold that the facts of the instant writ petitions require the matter to be remanded to the Tribunal for adjudication on all the pleas which were urged including the two pleas which have been decided by the Tribunal but not after spanning the entire sweep of the law pertaining to the said pleas.
23. Impugned order dated 6.4.2004 is set aside and OA No.452/2002 and OA No.453/2002 are remanded to the Tribunal for fresh adjudication with a direction that all contentions urged and pleas raised in the Original Applications shall be decided by the Tribunal including on the two issues on which we find truncated decision by the Tribunal.
24. Endeavour would be made to re-decide the two Original Applications within 6 months of the matters being listed before the Bench upon revival by the Registrar of the Tribunal.
10. The aforesaid paras 4.12,4.16,5.1,5.4 and 5.5 of the Original Application are extracted as under:
4.12 The inquiry proceedings were thereafter fixed for 16.3.1998. On the said date, the applicant submitted a list of 34 documents, all of which were permitted by the Inquiry Officer. A copy of the order dated 16.3.1998 is annexed hereto as ANNEXURE A-10. The Presenting Officer was further directed that in case of those documents not being available for one reason or the other, a certificate for non-availability should be obtained and filed. The applicant further states that the Presenting Officer took a considerably long time in making available the additional defence documents, which made it impossible for the applicant to prepare his defence vis-`-vis the said documents; whereas some documents were not at all made available for inspection. The applicant annexes hereto as ANNEXURE A-11. A copy of the statement in a tabulated form showing the dates and documents in which the inspection was allowed. The statement annexed also details the documents the inspection of which was not at all given to the applicant, not withstanding that all these documents were adjudged to be relevant by the Inquiry Officer vide his order dated 16.3.98 and thus, allowed to be permitted. It is respectfully stated that the contents of the annexed statement may be read as the part of the pleadings. xxx xxx xxx xxx 4.16 The reply of the applicant to the comments to the Inquiry was submitted on 13.5.99. Copy thereof is annexed as ANNEXURE A-17. The disciplinary authority, however, without considering the points of defence of the applicant in his reply to the report of the inquiry officer and during the course of personal hearing, imposed on the applicant the penalty of compulsory retirement vide order dated 11.1.2000 of which a copy is already annexed hereto as ANNEXURE A-1. xxx xxx xxx xxx 5.1 Because the applicant had submitted a detailed list of additional documents required for and on behalf of defence during the inquiry proceedings to substantiate his defence. Vide order dated 16.3.1998, the Inquiry Officer allowed the list of additional documents demanded by the applicant and directed the prosecution to make available all documents in the list dated 16.3.1998 on or before 27.3.1998 or to obtain and produce on record a non-availability certificate in respect of documents not made available to the defence. However, the prosecution supplied only some documents to the applicant and some documents which were crucial for the applicant to prove his defence were not made available to him at all. The list of documents not supplied to the applicant is detailed in the paragraphs to follow. It is also pertinent to mention here that some of the vital documents had been made available to the applicant at night of 1.4.1998, 3.4.1998, 6.4.1998 and 7.4.1998 though the regular hearing had started on 1.4.98, and completed on 8.4.1998. As such the applicant was not given reasonable and sufficient time to prepare his defence in an effective manner which has resulted in causing serious prejudice to the applicant.
The documents demanded by the applicant showing their relevance and allowed by the Inquiry Officer but not made available to him and which has caused material prejudice to the applicant are as under:-
(i) Work files maintained at Circle Level in the office of Superintending Engineer Shri R.M.Puttaswamy and at the Sub Divisional level in respect of the work in question.
The prosecution had made available the applicant only the work files maintained at Divisional Level while those maintained at Circle Level and Sub-Divisional Level were neither supplied nor shown for inspection to the applicant. It is pertinent to mention here that the Sub-Divisional Officer i.e. Assistant Engineer had maintai8ned a correspondence file at his end during the time of construction of the bridge. Had the said file been produced, it would have been proved through correspondence between the Assistant Engineer and his superior officers that the applicant was performing his part as per instructions of his seniors in a transparent manner and with integrity, sincerity and devotion to duty. In the absence of the said documents, the applicant could not effectively cross examine certain witnesses particularly Shri G.S.Arora and Shri A.N.Gupa in order to show that the applicant had been acting under the dictation and control of Shri G.S.Arora and had performed his duty in an honest and a fair manner.
(ii) Agreement number EE/SDDV/2/90-91 entered into with the contractor for construction of work in question.
The said document was essential for effectively cross-examining Shri A.N.Gupta (PW-4) and Shri G.S.Arora (PW-5) who had held the post of Engineer In Charge.
Had the said record been produced, the applicant would have shown (through clause 6 of the General Conditions of Contract) that it was the Engineer-In-Charge i.e. the Executive Engineer (PW-5) who had to ascertain and determine the value in accordance with the contract of work done and the applicant was working only as an authorized representative of Engineer-In-Charge and was bound by his instructions and orders and the applicant diligently performed his legitimate sphere of duties and responsibilities attached to various posts manning the execution of work at bridge. The aforementioned agreement was thus essential for defence of the applicant.
(iii) Complete file maintained at SSW office in the year 1993-94, in respect of Ranhola Bridge containing letter number CEF/SSW/Ranhola Bridge/93-94 (PF) 3308 dated 6.12.1994 and documents disclosing action taken by the addressee and endorsee authority who had specifically directed to take suitable action.
Only letter dated 6.12.1994 (marked as Ex.D-3C) was made available to the applicant instead of the complete file that was asked for. Through this document the applicant would have proved the fact of failure of design of structure submitted by the private designer which was not in conformity with the Indian Road Congress Codes and Indian Standard Guidelines. This document would have further proved that the applicant had nothing to do with the poor compaction of the concrete and it would have nullified the adverse effect of the Reports Ex.S-2, S-3 and S-4.
(iv) Duties and Responsibilities attached to the post of Junior Engineer, Assistant Engineer, Executive Engineer and Superintending Engineer while performing duties in field.
Though these documents, the applicant would have been able to prove that he was not empowered to act beyond a scope of instructions and orders given by Shri G.S.Arora at the time of execution of work. The applicant would have proved the scope of his duties vis-`-vis duties of his superiors.
(v) Letters number PA/JS/(IF)/623 dated 25.7.95 issued by Development Commissioner/Secretary (I&F) to Director General (Road Development Ministry of Surface Transport), along with letter number RW/NH/34066/2/95-S&R dated 16.8.95 issued by Superintending Engineer (Bridges) for Director General, Road Development, in response to the above said letter along with the document disclosing action on the same.
The main document disclosing action taken on the letter dated 16.8.95 by which the Department was intimated regarding the vital defect in design had been concealed. This document would have proved that there had been no defect in the execution of the work as the3 basic design itself was faulty. The said document would have proved that whenever a structure fails to meet the requirements of design aspect and when it is under reinforced, it is liable to fall, irrespective of the quality of concrete.
(vi) Reply by CWC in response to letter number PA/JS/I & F/214 dated 5.9.94 by Secretary (I&F) to Chairman, Central Water Commission.
The said letter was addressed in order to identify the defects in design and drawings and to confirm whether the existing design was sufficient to withstand the Indian Road Congress.
The said reply had clearly admitted that the design submitted by the designer of the bridge in question was not sufficient to bear 70R loading and was liable to fall and fall when subjected to actual designed load.
In the absence of the said document, the applicant was deprived of opportunity to effectively cross examine witness Sh.B.K.Mittal (PW-2) who was closely and squarely related to checking of the design of the Bridge.
(vii) Minutes of the Meeting held on 3.2.1995.
This document would have proved on record that CWC had clearly stated that collapse was due to failure of design and wrong placement and over-crowded reinforcement and thin section as shown in drawing. It was recorded in the said minutes that it was under reinforced structure which had fallen after giving proper warnings like appearance of cracks and showing sagging. Negligence of Sh.O.P.Sharma, Chief Engineer would have been proved on record through this document who allowed the bridge to collapse and did not take any remedial measures as suggested by Shri K.B.Rajoria PW-8 vide Ex.S-4.
It is pertinent to mention here that witness Shri O.P.Sharma was not produced as a witness even though he was a cited witness.
(viii) Documents disclosing the base, date, documents on the basis of which Ex.S-5 had been framed.
Non supply of the said documents deprived the applicant the opportunity of cross examining PW-2 effectively, the author and framer of Ex.S-2 thereby causing serious prejudice to the applicant.
(ix) The documents, data, drawings etc. on the basis of which document listed at S.No.4 of the impugned charge-sheet had been framed including the details of type of equipment used while conducting the said inspection and the codes relied upon while framing the said report.
These documents would have proved the fact that the defects and deficiency in design pointed out by Shri Rajoria, (PW-8) had been concealed by the prosecution.
(x) The applicant had demanded the details of the methodology adopted in collecting and testing the core samples and chipping concrete samples and disclosure of their respective standardized codes on basing which such methods had been adopted as stated in para 1 on page 1 in conclusions and listed document number 3 along with structure proof to the effect that such instructions had been followed.
In response to the above mentioned documents, Dr.Maiti (PW-1), the author and framer of Ex.S-3 made a malafide attempt to cover the gap apparent on the face of the said Ex.S-3 and forwarded some loose papers which nowhere disclose any proof to the effect whether the instructions/orders etc. contained in the code had ever been followed at the time of collecting and testing the samples. Moreover, no document was produced either by Dr.Maiti or prosecution to prove whether any such tests had been carried out and in whose presence, on what date and time and at what place.
(xi) Literature of machines appearing in Fig.1 at page of listed document No.3 and the maintenance register proving the fact of maintenance of said machines as per norms and standards as suggested by Manufacturers to give due performance and proof of specific training imparted to the as core cutting is a specialized job and requires skilled workers and good machines.
Dr.Maiti PW-1 provided illegible photocopies of the documents. No material was placed on records to show whether the said machine purportedly used at the time of collecting samples had been done as per inherent requirement of the code.
This strengthened the defence plea that Dr.Maiti was having a concept of maintenance of machines/equipments purportedly used in collecting samples.
(xii) Documents proving the fact that due care and caution had been taken by NCB as stated in 2nd para at page 2 of the Report of the document listed at Sr.No.3.
The said document was very essential for effective cross examination of PW-1, Dr.Maiti.
(xiii) Documents, codes etc. disclosing and explaining the variables which are standardized and some of which are non-standardized.
Absence of these documents affected the cross examination of Dr.Maiti, PW-1. It is pertinent to mention here that the applicant had demanded documents explaining variables? as appearing in para 2 of page 2 of the Report (part of Ex.S-3) whereas Dr.Maiti, PW-1 vide para 5 at page 2 of Ex.D-19, submitted the clarifications regarding variation in percentage of cement contents which had no relevance with the contents of the reports against which the document had been demanded.
(xiv) Documents disclosing variation allowed in the result of chemical analysis and the method of testing and deducing the compressive strength and variation allowed in the result including the disclosure of the equipment used to test the samples with that respective manufacturer literature.
These documents would have shown that testing was not done as per laid down norms and standards prescribed for the purpose.
(xv) Log books of vehicles number DLV-3, DED-3784, DNA-1935, DDV-403, DAE-30, for a period of January 91 to September 93.
These documents had been demanded to establish the fact that all superiors of the applicant like Engineer In Charge, Superintending Engineer and Chief Engineer had also visited the site and issued necessary instructions regarding execution of work, especially concrete work, the quality of which has been alleged to be poor.
(xvi) Complete Court File and Arbitration File in respect of the appointment of the Arbitrator and claim counter claim of the department in case number 736/98 in suit number 2559-A/94.
These documents were important for the defence of the applicant to bring on record the fact that the department had taken an entirely different stance before the Hon?ble High Court of Delhi and nowhere laid the blame at the door of the Execution Staff.
It is pertinent to mention here that the department has admitted before the Hon?ble High Court that there had been poor workmanship on part of the contractor and the department had accepted the work with due deductions in the same. It is specifically mentioned that the lapses that are appearing of workmanship are those which have been admitted by Engineer Incharge. The contractor had challenged the department vide Ex.D-10 stating that the design of the structure was faulty and not safe. Further Ex.D-3(c) and Ex.D-7 are the documents by which the department admitted that structure had collapsed due to design failure.
(xvii) Notification issued by the Competent Authority i.e. L.G. approving the adoption of CPWD Manual in Irrigation and Flood Department.
The said notification was essential and was required to show that CPWD Manual/CPWD Code were not applicable at the material time and any reliance thereupon by the prosecution has no force and cannot advance the case of prosecution any further.
The non supply of above mentioned crucial documents deprived the applicant at a fair opportunity to defend himself against the cooked up charges.
5.4 Because the case against the applicant is one of no evidence. Dr. S.C. Maiti (PW-1) had stated that he had mentioned in his report Ex. S-3 that he had collected 60 samples of PIER caps, PIERS, abutments etc. and 60% of the test were not meeting the strength requirement. But, in the cross examination, the witness has admitted that it was not a finding in the report Ex.S-3 that the strength of the concrete and structure was liable to collapse. Shri B.K. Mittal (PW-2) in his deposition exhibited document Ex. S-5 which was based only on CRRI report. Whereas Shri D.V. Singh (PW-6) who submitted the CRRI report had mentioned that he did not personally inspect the site and there were two teams headed by Dr. P.S.K.M. Rao and Shri M.V.B. Rao. Shri A.N. Gupta (PW-4) only assigned the work to the contractor and his deposition does not relate to the duties and responsibilities of the applicant.
Shri G.S. Arora (PW-5) has deposed nothing against the applicant. In fact in his cross examination he stated that the bridge was regularly inspected by the Chief engineer and the Superintending Engineer.
Sh. K.B. Rajoria (PW-8) in his cross-examination stated that he did not conduct any laboratory/field test as prescribed in the relevant codes to determine the strength of the concrete. As such the report relied upon the Inquiry Officer cannot be termed as evidence by any stretch of imagination.
5.5 Because it was proved on record that the design submitted by M/s Project Consultants vide drawing Ex. D-3A was having serious deficiencies which ultimately resulted in the collapse of the bridge.
The Arbitration proceedings between the contractor and Government of NCT of Delhi also while directing release of payment to the contractor with interest gave a finding that collapse of the bridge was due to deficiency in design.
Certain deficiencies in design of the bridge were:-
Curtailment of main tensile reinforcement both in pier cap and longitudinal beams of decking was done too early.
Anchorage length of 1000 mm for 732 bars at top of pier cap was too inadequate. As per IRC 21304.6.2.1 it should have been 2464 mm.
In case, design calculation requires 4 legged T 16 stirrups in pier cap it should have been provided vertically for the full depth for the central 900 mm. The peripheral reinforcement counted as two out of four legs of shear reinforcement is not a good practice.
Requirement of main tensile reinforcement in longitudinal beams as 16 nos. (T 28mm) instead of 14 nos. (T 28 mm) provided at 3L/8 section and 12 nos. (T28 mm) instead of 8 nos. (T28 mm) provided at L/4 section. Further, the bars need to be extended beyond theoretical point of cut off as per IRC-304.6.3.2. which has been totally over looked.
Requirement of shear reinforcement as 4 legged (T12) @ 110 mm C/C instead of 150 mm C/C provided at L/8 Section. At L/4 section, 2 legged (T-12) stirrups are required at 90 mm C/C against 150 mm C/C provided.
Lap length mentioned in Note No. 7 of the drawings is too inadequate. AS per IRC CI 304.6.6.2 and 304.6.6.3, it should be 55 x 1.4 x 0.8 62d for C.C. 1:1.5:3 and not 40d mentioned in the drawing.
That after receipt of expert advice from M/s unique Engineers, Shri A.N. Gupta, the then Superintending Surveyor of Works (SSW) (PW-4) issued necessary instructions to the Executive Engineer SDD-1 vide letter dated 6.12.1994 marked as Ex. D-3C (annexed hereto as ANNEXUE A-20.) by confirming the serious deficiency in design by stating that the design submitted by the designer (Ex. D-3A) was not conforming to the relevant IRC Code and Indian Standard Guidelines and this defence had led to the collapse of the one of the span of the bridge and development of cracks in other two spans and further directed the said Executive Engineer to issue a Show Cause Notice to the designer and in pursuance to these directions, the Executive Engineer issued a show cause notice on 13.12.1994 (Ex.D-7) (annexed hereto as ANNEXURE A-21) stating therein that the designer was responsible for faulty design leading to collapse of structure and further directed the designer to show cause why an action be not taken against them.
11. The submissions of the applicant with regard to aforesaid paragraphs in a nutshell are as under:-
(i) After receipt of chargesheet dated 29.2.96 when the applicant for the purpose of filling W.S.D asked for relied upon documents, the respondents without supply the documents, appointed the Inquiry Officer and the Presiding Officer and thus denied right to filling W.S.D. In this regard, he has also relied upon the judgment of the Apex Court in Union of India v. S.K. Kapoor, 2011 (3) SCALE 586 wherein it was held as under:
It is a settled principle of natural justice that if any material is to be relied upon in department proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
(ii) That the applicant had submitted the list of 34 additional documents which were admitted/permitted by the Inquiry Officer and only exception which was granted to Presenting Officer was that in case, the documents are not available, he should obtain non availability certificate. On perusal of the statement of the additional defence documents, it is clear that the documents at Sl. No.4,17,20,22,25,26,27,28,29,31, 32 and 34 were not made available and no certificate of non availability was produced and hence, inspite of the admitting documents, the Presenting Officer did not produce the documents. The Inquiry Officer ignored this fact when highlighted which is evident from the Inquiry Report. When the fact was highlighted before the Disciplinary Authority and the Disciplinary Authority only highlighted the averment of the applicant but, no finding discussing the averment has been given. Likewise, the Appellate Authority though, referred the averments of the applicant but, ignored this fact that the Inquiry Officer had admitted all the documents and hence, the entire enquiry is bad in law and is vitiated. In this regard, learned counsel for the applicant Shri S.K. Gupta has relied upon the order of this Tribunal in OA No.3218/2009. Shri Manik Chand Vs. Union of India & Ors. wherein it has been held that if the documents admitted by the Inquiry Officer are not supplied, it will seriously prejudice the defence of the applicant. According to him, even the documents as asked for in relation to faulty designs were not supplied to the applicant. As regards, the rest of the documents which have been supplied, as many as 15 documents of them were supplied to him after the examination and cross-examination of PWs was over and as such they were no use to him and no amounts to non supply at all.
(iii) In this regard, he has relied upon the order of this Tribunal in OA No.3218/2009 Shri Manik Chand v. Union of India, decided on 15.4.2011 wherein it has been held as under:
13. We will now deal with the Applicants principal contention relating to denial of reasonable opportunity of being provided as a result of non-supply of the documents sought by him in his defence. Government of India have issued instructions in 1961 clearly stipulating to supply of copies of documents and to afford access to official records to the delinquent official, which view, even holds good even today. For better appreciation of the issue involved in this case, it would be appropriate to reproduced paragraphs 1 to 5 of Government of India, M.H.A., O.M. No.F.30/5/61-AVD dated 25th August, 1961.
14. We may now examine the present case in the light of the aforesaid instructions. The applicant asked the Inquiry Officer on 8-5-2006 to provide him certain documents 32 in number in his defence, which he would be requiring to defend himself. The inquiry officer denied the access to 5 of those documents but without recording any reasons there for. Further, he requested Presenting Officer and Disciplinary Authority some more documents of which as many as 18 such documents were not provided despite the directions of the Inquiry Officer. No reasons have been assigned for the same. The thrust of the Respondents argument in this regard was that relied upon documents have been provided to the Applicant. Therefore, no prejudice would have been caused to him. We are not inclined to subscribe to this. Documents or records not so referred to in the statement of allegations may be relevant for the purpose of defence of the delinquent officer. Relevancy of the documents has already been determined by the Inquiry Officer by directing the supply of the same to the Applicant. Non-supply of the same would certainly operate to the prejudice and disadvantage of the Applicant and to that extent, we conclude that the Applicant has been denied reasonable opportunity which is violation of the principles of natural justice.
15. The entire gamut of the scam reveals that the fraud committed by the Offenders and conspirators have already been convicted in the Trial Court The next group of persons found by CBI as subsidiary offenders include the Applicant. The conduct or misconduct of the Applicant assumes relevance. It is admitted position that he is not the one, who has committed the fraud or misappropriated / embezzled the amount resulted in loss to the Government. The main culprit has been some other people. The allegations against the applicant leveled are that he has failed to make proper check and verification of the documents as envisaged in the relevant rules. He did not gain any pecuniary benefits personally on account of such failure in any way. We note that in Munna Lal Sharmas case (supra) this Tribunal considered similar issues and allowed the OA restoring the full pension to the Applicant in the said OA. The Honourable High Cort of Delhi has also upheld the decision of the Tribunal We find that the Applicant in the present OA is similarly situated person facining similar charges as in case of Munna Lal Sharma. Further, it is also an admitted fact that in response to similar allegations alleged to have occurred during the period and committed by many of the Applicants colleagues have been inflicted with minor penalty. The Respondents themselves have proceeded under minor penalty proceedings whereupon penalty of recovery of a sum of Rs.5000/- was ordered to be made on many similarly situated persons found to be in the category of subsidiary offenders. There is logic in the contention of Applicants counsel that he is similarly situated and circumstanced as Munna Lal Sharma and others. In these premises, imposition of penalty of dismissal from service appears to be on higher side and grossly disproportionate.
16. In the totality of the facts and circumstances of the case and for the reasons stated above, we are of the considered opinion that the Applicant has been prejudiced by the non supply of the documents and enquiry proceeding has been vitiated from that stage. We therefore have no other option but to quash and set aside the impugned orders and remit back the case to Inquiry Officer.
17. In terms of our above directions the Original Application is allowed, and the impugned orders of the Disciplinary, Appellate and Revision Authorities and the Inquiry Officers Report are accordingly quashed and set aside. Resultantly, the Applicant is reinstated to service and the case is remanded back to the Inquiry Officer to continue the enquiry from the stage where the procedural infirmity has crept in. The Disciplinary Authority while passing his order in the case would take into account our observation and more specifically the points discussed by us in this order and on the proportionality angle, and also pass order on the treatment of the period the Applicant had spent out side the service from the date his dismissal from service to the date of reinstatement. No order as to costs.
(iv) The Charge of permitting sub standard material is not sustainable. When the bridge was closed for general traffic and the Govt. of NCT stopped payment of contractor Sh.Khem Chand as per the terms of the agreement approached the Arbitrator and before the Arbitration, it was specifically plea of the Govt. of NCT that the bridge in question had collapsed because of permitting sub standard material. Whereas, the Arbitrator gave a specific finding in para 7.1, 7.2 and 7.3 of the award that he bridge was collapsed because of the faulty design. Against the said award, the Govt. of NCT filed OMP No.1q74/1999 before Honble High Court of Delhi and from the perusal of para 1 of the judgment it was a specific plea of the Govt. of NCT that poor workmanship and use of sub standard material was the reason for collapse and Honble High Court of Delhi in para 13 rejected the contention of Govt. of NCT and justified the findings of Arbitrator that the bridge was collapsed on the basis of faulty design.) In terms of the above, the observation of Honble High Court of Delhi in Para 13 is attracted as the bridge was collapsed because of the faulty design and this is the finding of Honble High Court of Delhi. The fact remains, award and judgment have since been accepted and implemented by Government of NCT of Delhi. In this regard, the learned counsel for the Applicant has referred to the following findings of the learned Arbitrator in his Award in the matter of Shri Khem Chand Vs. Govt. of NCTD dated 19.02.99:-
NAME OF WORK EXTENSION OF TANHOLA BRIDGE AT RD 30825 OF SUPPLEMENTARY DRAIN AGREEMENT NO. EE/SDD-V/2/90-91.
7.2 The work was executed by the Claimant under supervision of the Respondents engineers. Also the work as executed had been accepted and paid for without any reservation by the Respondent, at the relevant time.
7.3 On the other hand evidence led indicates failure of the structure on account of inadequate designs and drawings. This is also borne out from the site inspection as the collapsed span has broken at the location of about < to 3/8 of the span from the end where both uhear as well as flexural reinforcements in the main girders were inadequate. Lorgitudinal reinforcement in the main girders was mistakenly curtailed in the drawing at 3/8 of the span instead of < of the span from the end and as such the flexural reinforcement actually shown in the drawings at these sections was inadequate.
(v) He has also relied upon the judgment dated 29.4.2003 in the objector petition filed vide CWP 174/1999 - Govt. of NCT of Delhi v. Shri Khem Chand & Anr:
The failure of the structure according to the petitioner objector, was attributable to poor workmanship and use of sub-standard material by the claimant. The claimant, on the other hand, maintained that the structure had failed on account of inadequate and defective designs and drawings supplied by the petitioner-objector. x x x x x x x 13. In the case on hand, the arbitrator noticed that the work was executed under the supervision of the engineers of the petitioner-objector. Further, the work as executed was accepted and payment in respect thereto was made without any reservation. On the basis of evidence produced before hi, he concluded that the failure of structure was rather attributable to deficiency in designs & drawings. Spot inspection also according to the arbitrator, led to the same finding.
(vi) He has further stated that the Respondents have in fact held Shri R.C. Sood, Superintending Engineer responsible for approving the faulty structural drawing for the construction of the bridge and initiated disciplinary proceedings under Rule 14 of the Central Civil services (Classification, Control and Appeal) Rules, 1965 vide Memorandum dated 20.9.95 and statement of Article of charge and statement of imputation against him was as under:-
STATEMENT OF ARTICLES OF CHARGE FRAMED AG UNIT SHRI R.C.SOOD, SUPERINTENDING ENGINEER.
ARTICLE-1 That the said Shri R.C. Sood while functioning as Superintending Engineer, supplementary Drainage Circle (presently renamed as Supplementary Drainage circle I) Delhi Administration (Presently Govt. of N.C.T. of Delhi) during the period 29.11.1988to 26.5.1989 has approved the structural drawings for the construction of bridge on supplementary drain at no.30025 M. (near Ranhola Village) and that the structural drawing is found to be deficient in detailing of reinforcement loading to reduced capacity of the bridge as compared to the design capacity and therefore he said Shri Sood has failed to:
maintain devotion to duty and take suitable steps to ensure devotion to duty of Govt. servants for the time being under his control and authority.
Thus he has violated Rule 3 of the CCS (Conduct) Rules 1964.
STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLES OF CHARGE FRAMED AGAINST SHRI R.C. SOOD, SUPERINTENDING ENGINEER.
Article-1
1. The structural design and drawing for the bridge at No.30025 on Supplementary Drain near Ranhola Village have been got prepared by the Executive Engineer Supplementary Drainage Division I from the consultants M/s Project consultants vide EEs letter No.F.16(5)/SDD-I/DB/2716 dated 30.3.1989.
The design and drawings were submitted by the Executive Engineer, Supplementary Drainage Division No.I to the Supdt. Engineeer, Supplementary Drainage Circle, Delhi Administration, for approval under E.E.s letter No.F.15(1)/EDD-I/DB/2716 dated 30.3.1989.
The jotter was marked by Shri R.C. Sood, Suptdg. Engineer to Sh/Shri N.K. Sharma, ASW.
Shri N.K. Sharma, ASW has put up the drawings and designs to Shri R.C.Sood on 10.4.89 for his (Shri R.C.Soods) approval.
Shri R.C. Sood, Suptdg. Engineer, has approved the designs and drawings C1 and C2 by affixing his on nature on the drawings and note on 20.4.89.
Construction of the bridge has been carried out based on those drawings.
Shri G.S. Arora, Executive Engineer, GDD V has stated in his note No.F.5(5)/93-94/ACS/SDDV/2 & 5 dated 18.1.94 addressed to the Suptdg. Engineer UDCIS that the bridge was opened to traffic on 13.1293 after completing Ranhola side approach and culvert over KEIS channel and closed on 26.12.93. Shri G.S. Arora has further stated that:-
(ii) After virtual completion of the bridge and before opening for traffic, the complete work was inspected. It was seen that a complete structure is OK and the bridge was opened to traffic on 13.12.93. Of course, it had been seen that there are few fine hair cracks here and there on the exponed surface of main girder of right and left prior. These fine cracks being of he nature/type which do appear on almost all concrete surface in the cover portion outside the reinforcement and particularly in the repair and finishing work done with cement and mortar/plaster due to temperature variation/expansion and contraction.
(vii) The respondents have issued the notices to Sh. Vijay Aggarwal of M/s Project Consultants and the aforesaid notice still stands as the same has not been withdrawn.
(viii) The respondents have shown discrimination in the matter of award of punishment. As many as, 10 officers were charge sheeted for the supervisory lapse and they have been awarded the following punishments:
Sh. R.C. Sood, Supdt. Engineer 20% reduction in pension.
Sh. S.R. Vasudeva, Exe. Engineer 20% reduction in pension.
Sh. N.K. Sharma, Asstt. Engineer 3 stage down and 3 increment stopped.
Sh. R.N. Sharma, Asstt. Engineer 3 stage down and 3 increment stopped.
Sh. M.I. Farooqui, Jr. Engineeer 3 stage down and 3 increment stopped.
Sh. R.M.P. Swamy, Supdt. Engineer exonerated.
Sh. G.S. Arora, Exe. Engineer Compulsory retirement.
Sh. J.M. Sharma, Asstt. Engineer, 2 stage down.
Sh. S.C. Gupta, Asstt. Engineer,compulsory retirement.
Sh. Upendra Agnidev, Jr. Engineer, compulsory retirement.
From the perusal of the above, it is clear that the applicant has been discriminated. It is further submitted that from the perusal of the charge sheet of Sh. R.C. Sood, Superintending Engineer, there was an allegation that because of the failure of the structural designs , the bridge was collapsed but a much less punishment was awarded to him. It is the admission of Govt. of NCT in the said charge sheet of Sh. R.C. Sood is that the bridge was collapsed because of faulty design.
12. The reply of the respondents to the aforesaid paragraph 4.12, 4.16, 5.1, 5.4 and 5.5 are as under:
4.12 That the contents of this para of the O.A. are wrong as alleged, hence denied as such. From the perusal of the proceedings, it can be seen that the applicant had been making request for additional documents on every proceedings, so as to diver the attention from the core issues and mislead the Inquiry Officer and linger on the case for his advantages. However, every efforts had been made by the presenting officer to make available the demanded defence documents to the applicant considering the relevance on merits, as per the orders of the I.A., who was the final authority to decide on the demand of the defence documents. All the relied upon documents have been supplied to the applicant.
4.16 That the contents of this para of the O.A. are wrong and as alleged, hence denied as such. The contention that the disciplinary authority, without considering the points of the defence of the applicant had imposed the penalty is absolutely wrong, since the disciplinary authority had decided the quantum of punishment after thoroughly considering all the related records and after giving a personal hearing to the applicant.
5.1 That the contents of this para of the O.A. are wrong and denied as such. The applicant has contended that some of the additional documents requisitioned by him for his defence and allowed by the Inquiry Officer were not made available to him, which is not correct. It can be seen from the daily order sheet dated 8.4.98 recorded by the Inquiry Officer, that the charged officer had himself presented a consolidated list of 25 defence documents, which were all supplied to him on the same day and were made as Exhibits D-1 to D-25 during the inquiry. The C.O. made full use of those exhibited documents during the enquiry proceedings. He is coming up with these fault finding excuses only when the enquiry report has gone against him and all this is an after thought. Thus, none of the defence documents was denied to the applicant during the course of enquiry. His contention that some of the defence documents were given to him in piece meal at the time of recording of evidence is also false. So there was no denial of any documents or denial of the nature justice. All the relied upon documents were supplied to the applicant and as such the applicant was given full opportunity to defend himself.
Work file maintained at Circle Level & Sub-Divisional Level.
These documents have no relevance, as in these files, the papers relating to the award of works and running payment made to the contractor are maintained. As already admitted by the applicant himself that the work file maintained at divisional level was made available. It is but natural that if the Assistant Engineer had made any specific correspondence relating to the work, this must be available in the divisional office file. As already clarified above, in the sub-divisional office file, papers relating to payments made to the contractors are generally maintained. It is not understood what the applicant wants to prove from these documents. As such this document had no relevance in the enquiry and was also not relied upon by the department in the D.E., as such this contention of the applicant has no merit.
The contention that the applicant was working as an authorized representative of the Engineering-in-charge sound vague. The word Engineer as entered in the contract document is a symbolic reference for contractual purposes In fact, Asset. Engineer is incharge of the sub division and is vested with financial and technical powers for the management and efficient execution of works within the sub-division. The powers of the AE are well defined in CPWD manual and codes. As such this document had no relevance in the enquiry and was also not relied upon by the department in the D.E., as such this contention of the applicant has no merit.
Complete file maintained at S.S.W. Office.
The plea of faulty design, which the applicant want to rely upon by quoting this document has no bearing in relation to the charge of dereliction of duty in failing to obtain good quality of work. As such this document had no relevance in the enquiry and was also not relied upon by the department in the D.E., as such this contention of the applicant has no merit.
The investigation by the prime expert organizations have proved well beyond doubt the failure of the bridge occurred, as the cement concrete used in the girders and deck slabs was weaker and poor quality, containing hollows and honey combes. Thus, the plea that there was some discrepancies in the design cannot condone the fact that failure was also due to weak concrete, leading to collapse, before the yield stresses in concrete as well as in steel could reach their designed safe values.
By quoting reference to various documents and references, the applicant is trying to mislead the Honble court from the core issue, that is that the bridge collapsed due to poor concrete, which is due to negligence on the part of applicant.
Duties and responsibilities:
Para 53 of CPWD code and section 5 of C.P.W.D. Manual Vol.II specifies the duties and responsibilities of the various officers. As per para 52 of CPWD code, the sub divisional officer (A.E.) is fully responsible for the management and efficient execution of work with in the sub-divn. Again as per para 5.11.1 and 5.11.2 of CPWD Manual the officer who record/test check the measurements of work will be responsible for the quality and quantity and dimension accuracy of the work, he has measured/test check. Further as per para 5.11.2 the A.E. must make adequate surprise check to ensure the quality of work during the execution.
These duties and responsibilities of various officers of C.P.W.D. are well defined in CPWD Manual and code, which are available in each sub division and also readily available in the market. Further the applicant has not disputed his duties and as such this document had no relevance in the enquiry and was also not relied upon the department in the D.E., as such this contention of the applicant had no merit.
No officer can supervise any work without the knowledge of his duties and responsibilities without having the knowledge of his duties as per C.P.W.D. manuals and codes.
All these documents relates to correspondence relating to the design aspect of the structure. The applicant is trying to mislead the Honble Court from the core issue, which is that the bridge collapsed due to poor concrete, which is duty on the part of the applicant. The usefulness and the reasons for non production of Sh. O.P. Sharma, retired Chief Engineer as witness in the enquiry has already been explained and needs no repetition.
The plea that the documents relating to the type of equipments, details of methodology used in collecting samples, their standardized codes, maintenance of register of machines was not furnished is not true. As already submitted, the investigatory tests were conducted by the teams of expert organizations of C.R.R.I., C.B., and C.W.C. etc. who are even associated with the framings of I.S. Codes on the subject matter. The investigations done by these agencies are almost beyond challenge. The log books of Senior Officers of this Department has no relevance in the instant case, as only journeys are recorded in the log books. It is the site order book or the inspection report, where the instruction are recorded by the Field Engineers. As such this document had no relevance in the enquiry and was also not relied upon by the department in the D.E., as such this contention of the applicant has no merit.
The Court file and arbitration file too has no relevance, as these have no links with the quality of works, which is a core issue in the instant case. Moreover, an arbitrator is a judge in himself and his decision are not challengeable. Further more that is a case relating to payments and disputes arising out of the contract between the Govt. and the contractor.
Notification issued by the L.G. It is not understood what the applicant had intended to prove with this document. This is an admitted fact that as per the instructions contained in the erstwhile Ministry of Irrigation and Powers, letter dated 28.12.1972, which was issued with the concurrence at the Ministry of Finance, the approval of the President had been conveyed to the Secretary Finance Delhi Administration for applicability of the C.P.W.D. Codes and manuals in I&FC Deptt. w.e.f. 23.8.85. The officers, as are delegated to their counter parts in C.P.W.D. Be that as it may, since all the documents as per the demanded consolidated list of defence documents dated 8.4.98 were supplied to the applicant, he cannot take any excuse in now saying that such & such items were not made available to him. Furthermore all the relied upon documents were supplied to the applicant, there is no violation of Principles of natural justice as alleged.
5.4 That the contents of this para of the O.A. are wrong as alleged, hence denied as such. The Enquiry Officer has drawn his conclusions based on sufficient evidence advanced during the enquiry, based on the material documents, statement of witnesses, and as such, the submissions made by the applicant that there is no evidences against him is totally false.
Dr. S.C. Maitis report is based on various tests and specimen conducted at site and in the laboratory and there is no contradiction between his reports and statements given by him as a prosecution witness.
Sh. D.V. Singh, being Director of C.R.R.I. has also confirmed the report given by the team of experts from his organizations and there is absolutely no contradiction between the report of C.R.R.I. and his statement as prosecution witness.
Sh. G.S. Arora being himself a charged officer was not in a position to cast any adverse remarks on the applicant and hence it is immaterial.
Sh. K.B. Rajoria, the then Chief Engineer PWD, made only a preliminary enquiry. His conclusion were based on the preliminary findings and visual observation, which were confirmed by him during his statement as prosecution witness without any contravention of his report.
5.5 That the contents of this para of the O.A. are wrong as alleged, hence denied as such. Although some discrepancies in the design and drawings were also found, and the officer responsible for such lapse have also been charge sheeted and suitably penalized by the disciplinary authority, various structural members of the bridge was of poor quality and caused the untimely collapse of the bridge. The applicant is trying to mislead the court by trying to divert the attention from the core issue, which is poor quality of concrete, as established by the reputed Govt. Organizations, which conducted detailed investigations into the various causes of the failure of the bridge. The applicant cannot save himself by pointing out the mistakes of others and further shifting his responsibilities on others.
13. The learned counsel for respondents has also submitted that the Award of the Arbitrator or decisions of the High Court in this regard are not relevant to the disciplinary enquiry held in this matter.
14. We have heard the learned counsel for the applicant and learned counsel for respondents and have perused the entire record. A perusal of the earlier Order of this Tribunal dated 06.04.2004 in both these O.As would reveal that they were partly allowed and the respondents were directed to reinstate the applicants in service for the following two reasons:-
(1) Non supply of the CVC report.
(2) Non-compliance of the mandatory provisions contained in Rule 14 (18) of the CCS (CCA) Rules, 1965.
However, they were given liberty to proceed further in the disciplinary proceedings against the applicants from the stage of supplying a copy of CVC report, if they were so advised,
15. The High Court considered the aforesaid Order in the respective Writ Petitions filed by the Respondents but they have remanded both the O.As to this Tribunal vide its judgment dated 29.09.2010 for fresh adjudication on all contentions urged and pleas raised in the Original Application especially those in Paras 4.12, 4.16, 5.1, 5.4 and 5.5 which are reproduced elsewhere in this order. The High Court further observed in the said judgment that this Tribunal in its Order has dealt with only the aforesaid two technical pleas but ignored pleas of substance and held, if the applicants could show that the bridge collapsed due to a faulty design and in respect of the evidence sought to be brought on record that they permitted sub-standard material to be used, could establish that Ground 5.4 urged was correct, they would have successfully demonstrated that the charge of permitting sub-standard material to be used was sustained ignoring the said pleas and deficiency in the evidence brought on record. Again the High Court observed that if the applicants can make good the contentions urged by them in para 4.12 and para 4.16 and the Grounds urged in para 5.1, 5.4 and 5.5 of the Grounds, that would mean that the entire inquiry report stands vitiated and it would be a case of denial of fair opportunity of defence as also a case of the inquiry officer ignoring material evidence. The High Court has, therefore, directed this Tribunal to adjudicate upon those issues which strike at the root of the matter.
16. As far as non-compliance of Rule 14 (18) of the CCS (CCA) Rules, 1965 is concerned, the High Court observed that it has not been established whether the non-compliance of the aforesaid provision has prejudiced the defence considering the pleas in paras 4.12, 4.16 and grounds urged in paras 5.1, 5.4 and 5.5. In this regard, the High Court has relied upon the judgment of the Apex Court in Sunil Kumar Banerjee Vs. State of West Bengal & Ors. (1980 (3) SCC 304) as against the Apex Courts decision in Moni Shankar Vs. Union of India & Anr. (2008 (3) SCC 484) and Ministry of Finance & Anr. Vs. S.B. Ramesh (1998 (3) SCC 227).
17. As far as the issue of CVC advice not being disclosed to the applicants is concerned, according to the High Court, this Tribunal has noted the decisions of the Supreme Court in State Bank of India Vs. D.C. Aggarwal, JT 1992 (6) SC 673 but have not factored the fact that the advise of the CVC was to dismiss the applicants from service but the disciplinary authority has levied a lesser penalty.
18. The contention of the Applicant in Paras 4.12 and 5.1 is that he sought for copies of 34 additional documents which have been permitted by the Inquiry Officer but the respondents have given him only some of those documents and the crucial documents for proving his defence were not given. He has also stated that some of he crucial documents were supplied to him on 1,3,5 and 7 of April, 1998 whereas the regular hearing commenced already on 01.04.1998 and completed on 08.04.1998 thereby denying him a reasonable opportunity to defend his case. He has listed 16 crucial documents which have been asked for but not furnished to him. According to him, the non-supply of those documents has caused serous prejudice to him. The respondents have replied that the aforesaid request of the Applicant for additional documents was only to divert the attention from the core issues. However, they have stated that copies of all listed documents and 25 additional documents sought by the Applicant have been given to him. They have denied his allegation that those documents have been given to him in piecemeal. They have also stated that the following documents were not relevant and, therefore, they were not given to him:-
(i) Work file maintained at Circle Level & Sub-Divisional Level.
(ii) Complete file maintained at S.S.W. Office.
(iii) Duties and responsibilities.
(iv) Notification issued by the L.G.
19. The contention of the Applicant in Para 4.16 is that the disciplinary authority has imposed the penalty of compulsory retirement upon him without considering the depositions of the defence witnesses. In their reply, the respondents have denied that allegation.
20. In Para 5.4, the Applicant has stated that the case against him was one of no evidence as none of the PWs have proved the charge. The respondents denied the said contention and stated that there was sufficient proof on record to prove the charge.
21. His contention in Para 5.5 is that it was proved that the design submitted by M/s Project Consultants vide their drawing have serious deficiencies which ultimately resulted in the collapse of the Bridge. However, the respondents have submitted that though there were serious defects in the design and the persons concerned have been punished by the disciplinary authority, ultimately the collapse of the bridge was due to poor quality of construction and the Applicant was responsible for the same.
22. As observed by the Honble High Court, the plea of substance raised by the applicants which strikes at the root of the matter is that the cracks have been developed in the bridge and one of its span was collapsed entirely due to the serious deficiencies in the designs submitted by M/s. Project Consultants and not because of any lack of devotion to duty or integrity on their part. In this regard, it is seen that when the bridge has collapsed and payment to the contractor Sh. Khem Chand was stopped by the Govt. of NCT of Delhi, he approached the Arbitrator. The plea of the Govt. of NCT of Delhi before the Arbitrator was that the cause of the collapse of the bridge was the use of substandard material by the contractor. The copy of the Award of the learned Arbitrator dated 19.02.1999 made available by the learned counsel for the applicants during the course of argument is quite relevant in this context. The contention of the Govt. of NCT of Delhi before the learned Arbitrator was that the failure of the structure was on account of poor workmanship and use of substandard material by the contractor but the contention of contractor was that the structure has failed on account of inadequate and defective design prepared and drawings supplied by the respondents. The learned Arbitrator came to the conclusion that the evidence led indicates failure of the structure on account of inadequate designs and drawings. The relevant part of the said Award is as under:-
6.4 The Respondent contends that the failure of the structure is on account of poor workmanship and use of sub-standard material by the Claimant. Whereas the Claimant contends that the structure has failed on account of inadequate and defective designs prepared and drawings supplied by the Respondent.
7.1 The evidence led by the Respondent does not support his contention that the Claimant had executed the super-structure work with unsound workmanship and sub-standard material as a result of which one span has collapsed.
7.2 The work was executed by the Claimant under supervision of the Respondents engineers. Also the work as executed had been accepted and paid for without any reservation by the Respondent, at the relevant time.
7.3 On the other hand evidence led indicates failure of the structure on account of inadequate designs and drawings. This is also borne out from the site inspection as the collapsed span has broken at the location of about < to 3/8 of the span from the end where both shear as well as flexural reinforcements in the main girders were inadequate. Lorgitudinal reinforcement in the main girders was mistakenly curtailed in the drawing at 3/8 of the span instead of < of the span from the end and as such the flexural reinforcement actually shown in the drawings at these sections was inadequate.
23. The Govt. of NCT of Delhi filed objections against the aforesaid Award before the Honble High Court of Delhi vide OMP No.174/1999 and the High Court vide its decision dated 29.04.2003 dismissed them and upheld the aforesaid findings of the Arbitrator. The relevant part of the said decision is as under:-
13. In the case on hand, the arbitrator noticed that the work was executed under the supervision of the engineers of the petitioner-objector. Further, the work as executed was accepted and payment in respect thereto was made without any reservation. On the basis of evidence produced before him, he concluded that the failure of structure was rather attributable to deficiency in designs & drawings. Spot inspection also, according to the arbitrator, led to the same finding.
24. The aforesaid Award and the decision of the Honble High Court on the Objections filed by the Govt. of NCT of Delhi which attained finality would show that it was categorical finding of the learned Arbitrator that the collapse of the bridge was due to failure on account of inadequate and defective designs and the drawings supplied to the Govt. of NCTD and not because of the poor workmanship and use of substandard material by the contractor. Therefore, the respondents failed to prove that the applicants, as In-charge of the construction of the Bridge, were responsible for collapse of the bridge. The same was the charge against them in departmental proceedings also.
25. Now let us see the report of the inquiry officer dated 30.05.1998 in respect of Sh. S.C. Gupta which was prior to the aforesaid Award dated 19.02.1999. According to the Prosecution Witnesses, the concrete was weak and the bridge was liable to collapse. Further, they added that many of the concrete samples had honey combing and voids proving that the concrete had not been compacted well resulting into the reduction in the strength of the concrete. Therefore, the Enquiry Officer held that the charges against the applicants have been proved.
26. Thus the Award of the Arbitrator as upheld by the Honble High Court and the report of the Enquiry Officer in the departmental enquiry proceedings have entirely opposite conclusions on the issue which is the crux of the matter. The argument of the learned counsel for the respondents that Award of the Arbitrator and the decision of the High Court on the Objections filed by the Govt. of NCT of Delhi has no relevance in the matter, cannot be accepted. In this connection, the statement of Article of charge framed against Shri R.C. Sood, Superintending Engineer is quite relevant. The charge against him was that the structural drawings for the construction of the bridge as approved by him was found deficient in detailing of reinforcement loading to reduced capacity. In the statement of imputation, it has been further stated that the few fine hair crack here and there on the exponed surface of main girder of right and left prior. These fine cracks being of he nature/type which do appear on almost all concrete surface in the cover portion outside the reinforcement and particularly in the repair and finishing work done with cement and mortar/plaster due to temperature variation/expansion and contraction.
27. We are, therefore, of the considered view that the charges against the applicants were not based on any rationale. Rather, the respondents themselves were of the opinion that the fine cracks appeared on bridge were quite a normal feature and collapse of the bridge was actually due to the deficiency in the structural drawings for which the applicants were admittedly not responsible. Thus, the charge against the applicants being baseless, the evidences adduced against them during the departmental proceedings have also rendered worthless. We, therefore, find merit in the contention of the applicants that there were no valid evidences against them in the departmental proceedings and the conclusion of the Enquiry Officer that the charges against them have been proved is wrong. In such a situation, the other grounds raised by the applicants in challenging the impugned orders of the disciplinary authority as well as the appellate authority have no relevance.
28. Resultantly, both the O.As are allowed. The impugned respective orders of the disciplinary authority and the appellate authority are quashed and set aside. Consequently, the respondents are directed to reinstate the applicants in service with all consequential benefits except the back wages. They shall also issue appropriate orders in this regard within a period of two months from the date of receipt of a copy of the order. No order as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
`SRD