Central Administrative Tribunal - Delhi
Sandeep Miglani vs Govt. Of Nctd on 2 November, 2018
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.3249/2015
MA No.1969/2018
MA No.1716/2018
Reserved on : 24.10.2018
Pronounced on : 02.11.2018
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mr. Pradeep Kumar, Member (A)
Dr. Sandeep Miglani, CMO NFSG
S/o Ramji Dass Miglani,
R/o Flat No.11, E1 Block,
Pocket 9, Sector 15, Rohini,
Delhi. ... Applicant
( By Mr. Nilansh Gaur, Advocate )
Versus
Government of NCT of Delhi
through its Chief Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi-110002. ... Respondents
(By Mr. Amit Anand, Advocate )
ORDER
Justice L. Narasimha Reddy, Chairman :
The applicant was appointed as a Medical Officer in the year 1994, and was promoted as CMO (NFSG). It is stated that on account of his efforts made to eliminate corruption and illegalities in the Medical Department of the Government of OA-3249/2015 2 NCT of Delhi, the CVC treated him as a whistleblower in the year 2007.
2. In the year 2005-2006, the applicant functioned as a member of the Committee for Opening and Evaluation of Tenders, for award of contracts of sanitation services in 13 hospitals under the Government of Delhi. The Committee evaluated tenders and made recommendations to the competent authority. Six years thereafter, the respondents issued a memorandum dated 28.06.2012. Two articles of charge were framed alleging that as a member of the Committee, the applicant acted in violation of the terms and conditions by incorporating a new condition in the recommendation to the effect that only those bidders whose technical bids are short- listed, be considered for evaluation of their price bids. The other allegation was that on account of the recommendations made by the Committee, the Government incurred extra expenditure. The statement of imputation was also enclosed. Before issuing the charge memorandum, the first stage advice of the CVC was obtained.
3. The applicant submitted a detailed explanation to the charges. He pleaded that the evaluation of tenders was made in a transparent manner, and that the purpose of making OA-3249/2015 3 the stipulations was to ensure that the relevant provisions of law are complied with, and selection is made in a transparent manner. He pleaded that there was absolutely no basis for the charges.
4. The explanation submitted by the applicant was forwarded to the disciplinary authority, i.e., the Lt. Governor. Through an order dated 28.02.2013, the Lt. Governor took the view that the applicant is not guilty of any misconduct, and accordingly decided to drop the proceedings. As required under law, the second stage advice of CVC was sought. Through letter dated 12.06.2013, the CVC disagreed with the view expressed by the disciplinary authority.
5. At that stage, the applicant approached the Tribunal by filing OA No.733/2014 with a prayer to direct the respondents to communicate the order dated 28.02.2013 passed by the disciplinary authority. During the pendency of that OA, an order dated 09.12.2014 was passed by the respondents, appointing the inquiry officer. The OA was dismissed on 05.03.2015 observing that the applicant can challenge the order of appointment of inquiry officer. The same was reiterated in WP(C) No.3138/2015 filed by him in the Delhi High Court. Hence, this OA.
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6. The applicant contends that the memorandum of charge was issued to him after obtaining advice of the CVC at the first stage, and on consideration of the explanation submitted by him, the disciplinary authority took a dispassionate view of the entire issue. He contends that though it is necessary to refer the matter to the CVC at the second stage, the opinion is not binding on the disciplinary authority, and as a matter of fact, the CVC was informed after the second stage opinion that the disciplinary authority had chosen to drop the proceedings. It is contended that just because there was a charge in the incumbency of the Lt. Governor, the proceedings were re-opened in the name of review, though such a power does not exist under the relevant rules, or general principles of law.
7. The respondents filed a counter affidavit opposing the OA. It is stated that the view expressed by the Lt. Governor on 28.02.2013 was purely tentative, and the final decision could have been taken only after the CVC tendered its second stage advice. It is stated that the successor Lt. Governor has taken into account the fact that when the CVC was informed after the second stage advice about the decision to drop the proceedings against the applicant, they have taken a view that such a OA-3249/2015 5 decision would be treated as deviation from the advice, and accordingly the entire matter was reviewed. Legal opinion is said to have been obtained before the Lt. Governor had taken a different view in the matter.
8. Shri Nilansh Gaur, learned counsel for the applicant advanced arguments on the lines referred to above. He elaborated the arguments both as regards the character that can be ascribed to the order dated 28.02.2013 passed by the Lt. Governor; as well as the powers of the successor Lt. Governor to review the decision of his predecessor.
9. Shri Amit Anand, learned counsel for the respondents, vehemently argued that the view expressed by the Lt. Governor on 28.02.2013 cannot be treated as a final conclusion or order, and placed reliance upon the judgment in Bachhittar Singh v The State of Punjab [AIR 1963 SC 395]. He further contends that the Lt. Governor has every right to review the decision taken by his predecessor, and that no illegality has crept into the proceedings.
10. The allegation against the applicant was that, as a member of the Evaluation Committee, he was responsible for making recommendation as regards the award of sanitation contracts in respect of the hospitals. The record is not clear as OA-3249/2015 6 to whether similar proceedings were initiated against other member of the Committee, and if so, the result thereof. Here itself, it needs to be mentioned that the decision of the Committee collectively was only in the form of recommendation, and it was always for the competent authority either to accept or reject such recommendation.
11. The two charges framed against the applicant read as under:
"Article I That the said Dr. Sandeep Miglani (S. Miglani), the then C.M.O. (S&P), Directorate of Health Services, Government of NCT of Delhi, during the year 2005-2006, while functioning as Member of the Committee for opening and evaluation of Tenders/Tender Committee for sanitation services in 13 hospitals under Directorate of Health Services committed gross misconduct in as much as he, in violation of terms and conditions of the tender document and provisions of General Finance rule - 160 (GFR-160), recommended to add new condition i.e. „obtaining the manpower deployment plan‟ from four bidders whose technical bids were shortlisted, for evaluation of their price bids.
By his above act, Dr. Sandeep Miglani (S. Miglani), the then C.M.O. (S&P), Directorate of Health Services, Government of N.C.T. Delhi, has caused breach of trust, failed to discharge assigned duties in an honest and impartial way, exhibited lack of integrity, devotion to duty, and has acted in a manner unbecoming of a Government servant, thereby contravening the provisions of sub rule 1(i) (ii) (iii) of Rule 3 of C.C.S. (Conduct) Rules, 1964.
OA-3249/2015 7 Article II That the said Dr. Sandeep Miglani (S. Miglani), the then C.M.O. (S&P), Directorate of Health Services, Government of N.C.T. Delhi, during the year 2005-2006, while functioning as Member of the Committee for opening and evaluation of tenders/Tender Committee for sanitation services in 13 hospitals under Directorate of Health Services committed gross misconduct in as much as, he in violation of the terms and conditions of the tender document and provisions of General Finance Rule-160 (GFR-160), recommended and got approved award of contract for sanitation services in 13 hospitals under Directorate of Health Services to M/s Goodyear Services, L-3 bidder and ignored the bid of L-1, in an arbitrary manner taking into consideration the manpower deployment plan which was not part/condition of the tender document, by way of misrepresentation causing extra expenditure to the Government.
By his above act, Dr. Sandeep Miglani (S. Miglani), the then C.M.O. (S&P), Directorate of Health Services, Government of N.C.T. Delhi, has caused breach of trust, failed to discharge assigned duties in an honest and impartial way, exhibited lack of integrity, devotion to duty, and has acted in a manner unbecoming of a Government servant, thereby contravening the provisions of sub rule 1(i) (ii) (iii) of Rule 3 of C.C.S. (Conduct) Rules, 1964.
12. The applicant submitted a detailed representation to the charge memorandum. On a consideration of the same, the Lt. Governor expressed his views in a detailed written note dated 28.02.2013. While the applicant contends that the same is in the form of a final order, through which a decision was taken OA-3249/2015 8 to drop the proceedings; the respondents contend that it is in the form of a note. It reads as under:
"I have considered the facts and record of the case.
2. The Charged Officer, Dr. Sandeep Miglani the then CMO (S&P), DHS, GNCTD in his defence has averred that the Committee recommended M/s Good Year for award of contract because their bid amount met the criteria of minimum wages. Because, even though the Terms and Condition of the in the NIT lays the onus of paying minimum wages to the workers deployed for sanitation services on to the service provider, as per Labour Laws, the Government being the principal employer is liable to be held accountable for any violation. Charged Officer also cited the notice issued by Labour Commissioner for the violation committed by then existing contractor in respect of minimum wages, in support of his argument. The Charged Officer also averred that the Government will be able to ensure compliance of paying minimum wages only with the Contractor is being paid atleast at the rate of minimum wages for each worker deployed. Also the Committee had deliberated other options like recommending for retendering with modified condition or engaging the contractor who was providing sanitation services at other Government Hospitals, at the approved rate but the rates quoted by M/s Good Year were found to be the lowest as compared to all other hospitals of Delhi Government. Therefore, in larger public interest, the Committee had unanimously held that recommending M/s Good Year for consideration and acceptance of competent authority for award of contract as the best option.
3. I am inclined to accept the averment of the Charged Officer. It may be argued that the Committee had given a recommendation that OA-3249/2015 9 was not strictly within its purview. However, it was evidently the need to ensure payment of minimum wages to the labourers engaged by the contractor, which is possible only if the contractor is charging the same from the Government. Therefore, the recommendation of the committee to award the contract to M/s Good Year is to be seen in this light. Besides, there is no allegation or evidence of malafides against the Charged Officer.
4. Keeping in view the totality of the facts and circumstances, I order that the charges framed against the Charged Officer, Dr. Sandeep Miglani, in this case be dropped and this Disciplinary Proceedings closed.
The Charged Officer, Dr. Sandeep Miglani, CMO-NFSG, Delhi Government Dispensary, Prashant Vihar, be also appropriately informed."
13. Normally, the views expressed by an authority like the Lt. Governor, are in few words, and the speaking order communicating the decision is passed separately by the administration. This is a rare case in which the Lt. Governor passed a detailed and reasoned order. The conclusion is contained in para 4, and in the last sentence, a direction was issued to communicate the same to the applicant herein.
14. The respondents made available the relevant parts of the note file, and the gist thereof. After the Lt. Governor passed order on 28.02.2013, the matter was taken to the notice of the CVC, as required under the law. The letter dated 19.03.2013 addressed in this behalf reads as under:
OA-3249/2015 10 "Sub: Second stage advice in the matter of disciplinary proceedings in respect of Dr. Sandeep Miglani, the then CMO (S&P), Directorate of Health Services, G.N.C.T. Delhi.
Sir, Kindly refer to your OM No.008/DLH/016 dated 30.01.2008, vide which the Government was advised to initiate major penalty proceedings against Dr. Sandeep Mignali, the then CMO (S&P), Directorate of Health Services, G.N.C.T. Delhi, amongst others.
In this regard, it is informed that Dr. Sandeep Miglani, the then CMO (S&P), Directorate of Health Services, G.N.C.T. Delhi was issued memorandum/chargesheet no.3/5/2007/DOV/ 7092 dated 28.06.2012, containing 02 article of charge, under rule 14 of CCS (CCA) Rules, 1965, thereby proposing initiation of major penalty proceedings against the said Dr. Miglani, the officer submitted his reply against the articles of charge and sought hearing in person before Hon‟ble Lieutenant Governor, Delhi/Disciplinary Authority.
The reply was placed before the Hon‟ble Lt. Governor, being the Disciplinary Authority, who upon affording personal hearing to the Charged Officer, has accepted the defence of said Dr. Miglani, and keeping in view the totality of the facts and circumstances, has ordered that the charges framed against the Charged Officer, in this case be dropped and this Disciplinary Proceedings closed (emphasis in the original itself).
The reply of the officer, order of Hon‟ble Lt. Governor, Delhi/Disciplinary Authority, tabular statement, bio-data of the officer, with entire record as detailed below is being forwarded herewith for second stage advice of the Commission.
xxx xxx xxx OA-3249/2015 11 In view of the above rule position and the facts enumerated in the preceding paras, alongwith the reply of the officer, order of Hon‟ble Lt. Governor, Delhi/Disciplinary Aurhority, tabular statement, bio-data of the officer, with entire case record as detailed below is once again referred back for reconsideration of its 2nd stage advice...."
On receipt of the same, the CVC addressed letter dated 12.06.2013, which reads as under:
"Subject: Disciplinary proceedings against Dr. Anil Mehra, Director (DHS) and others. S.H. - Second stage advice in the matter of disciplinary proceedings in respect of Dr. Sandeep Miglani, the then CMO (S&P), Directorate of Health Services, GNCTD.
GNCTD may refer to their letter No.F/3/5/2007/DOV/3359 dated 19.03.2013 on the subject cited above.
2. After examining the reference received from GNCTD, the Commission has noted the position of no action against Dr (Mrs) Shukla Das and Sh. B.D. Jain since the case become time barred and disciplinary proceedings has been stayed by CAT respectively.
3. Further, Commission in disagreement with the recommendation of DA, would advise imposition of major penalty upon Dr. Sandeep Miglani for his recommendation for awarding tender to L-3 bidder in violation of existing guidelines.
4. Action taken in pursuance of Commission‟s advice may be intimated in due course. The GNCTD case files are returned herewith."
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15. The CVC is no doubt conferred with the power to make its own recommendation, but the way in which the advice was tendered, as contained in para 3, is really objectionable and shocking. Straightway, advice was tendered for imposition of a major penalty. It is only hoped that such expression was used inadvertently.
16. It is fairly well settled that the advice of CVC at the second stage is not binding on the disciplinary authority. Further, even if it is assumed that what was passed by the Lt. Governor on 28.02.2013 was provisional and subject to the second stage opinion, an important development took place on 20.02.2014. The respondents addressed a letter of that date to the CVC. It reads as under:
"Sub:- Disciplinary proceedings against Dr. Anil Mehra, Director (DHS) and others.
Sir, Please refer to your O.M. No.008/DLH/016- 221200 dated 29/07/2013 on the above cited subject, wherein a copy of letter/reply dated 08/07/2013 from Ministry of Health & Family Welfare, GOI to CVC has been enclosed and comments of GNCTD are sought and also refer to your O.M. dated 09/09/2013.
In this regard, it is submitted that as per the advice of CVC, Disciplinary Proceedings against Dr. Veer Singh, Dr. Sandeep Miglani and Sh. B.D. Jain, Sr.A.O. (retd.) were initiated, except in case of Dr. Mrs. Shukla Das (retd.) as per case was barred by the limitations of time prescribed OA-3249/2015 13 in Rule 9 of CCS (Pension) Rules, 1972 and same has been approved by Hon‟ble L.G./Delhi and Commission had noted the same vide OM dated 12/06/2013.
With regard to O.M. dated 09/09/2013, it is submitted that this Directorate is not in a position to take action on the second stage advice for imposing suitable major penalty upon Dr. Sandeep Miglani, the then CMO (S&P) as L.G. Delhi has passed an order dated 28/02/2013 to drop the charges and Disciplinary Proceedings be closed against the Charged Officer (emphasis supplied)."
17. It is important to note that the respondents have unequivocally stated that what was passed by the Lt. Governor on 28.02.2013 is "an order". On receipt of this letter, the CVC has responded just by observing that the decision to drop the proceedings shall be treated as a deviation from the Commission‟s advice. It is mostly a statement of fact than a direction for taking any particular action. The matter should have rested at that. In fact, the CVC also treated the matter as closed in that form. The same is evident from the Annual Report 2014 published by them for the relevant period. In relation to the proceedings against the applicant, the Report mentioned as under:
"Government of National Capital Territory of Delhi Case 7 OA-3249/2015 14 Charge It was alleged that Chief Medical Officer (S&P), M/o Health Family Welfare, Government of National Capital Territory of Delhi while functioning as Member of the Committee for opening and evaluation of tenders for sanitation services in 13 hospitals committed gross misconduct as he recommended the addition of new condition of obtaining the manpower deployment plan from the four bidders whose technical bids were shortlisted for evaluation. Further, he recommended and got approved award of contract to L-3 bidder and ignored L-1 bidder in an arbitrary manner.
Advice The Commission advised imposition of suitable major penalty on the Chief Medical Officer (S&P) for his recommendation for awarding tender to L-3 bidder in violation of existing guidelines.
Brief The Chief Medical Officer (S&P) while functioning as Member of the Committee for opening and evaluation of tenders for sanitation services in 13 hospitals under Directorate of Health Services committed gross misconduct in as much as, in violation of terms of conditions of the tender document and provisions of GFR-160, recommended to add new condition i.e. "obtaining the manpower deployment plan"
from four bidders whose technical bids were shortlisted, for evaluation of their price bids. Further, he recommended and got approved award of contract for sanitation services in 13 hospitals under Directorate of Health Services to the L-3 bidder and ignored L-1 bidder in an arbitrary manner taking into consideration the manpower deployment plan which was not a part/condition of the tender document by way of misrepresentation causing extra expenditure to the Government.
OA-3249/2015 15 Outcome Disciplinary Authority i.e., the Hon‟ble Lieutenant Governor of Delhi dropped the charges and exonerated the officer."
18. At a time when the proceedings have assumed finality with the communication issued to the CVC on 20.02.2014, a note that emanated from the Chief Secretary, dated 10.06.2014, turned the events in a different direction. In para 541 of the note file, a copy of which is made available by the respondents themselves, it is mentioned as under:
"Discussed.
2. We may put up to Hon‟ble L.G. for reconsideration with reasons."
A detailed note in para 543 was prepared. The concluding part reads as under:
"...Therefore, a draft order in accordance with the order dated 28/02/2013 of the then Hon‟ble Lt. Governor, Delhi was prepared and put up for approval (emphasis supplied)."
Even here, the one dated 28.02.2013 was treated as "the order". The sole basis for this exercise is said to be the repeated advice from the CVC. However, it is the Chief Secretary, who opined that the order of the Lt. Governor dated 28.02.2013 has not taken the shape of a final order. The note dated 24.06.2014 reads as under:
OA-3249/2015 16 "In view of CVC‟s repeated advice, it may be considered whether to go with the CVC advice, which seems appropriate in this case. The earlier Hon‟ble LG‟s decision, as may be seen at page 99/N, has not yet taken shape of final orders (emphasis supplied).
L.G. may please see for appropriate orders, in view of CVC‟s repeated advice in the matter."
This unfortunately is the type of administration in the Government of NCT of Delhi. Ultimately, when the matter reached the successor Lt. Governor, he observed as under:
"We should legally examine whether it is legally admissible for the Lt. Governor to review the order passed by the former Lt. Governor."
19. This was the most appropriate observation, which accorded with law. The Lt. Governor did not have any inkling of doubt that what was passed by his predecessor was an order, and he entertained a serious doubt as to whether it is permissible in law to review such orders. Then came the enlightened opinion from the Assistant Legal Advisor. Last paragraph of the opinion dated 16.07.2014 reads as under:
"Keeping in view above, there is no question of review of earlier order dated 28.02.2013 (99/N) in this case as the said order had not attained the finality till date. Therefore, the Hon‟ble Lt. Governor can consider the observation made in the said Order as an intention of the then Disciplinary Authority to drop the charges and take final decision in the matter considering the second stage advice of the OA-3249/2015 17 CVC. Hon‟ble Lt. Governor may pass the final order in the matter regarding continuation of disciplinary proceedings or dropping of the charges, as the case may be."
The Assistant Legal Advisor has just toed the line of the Chief Secretary, and the combined effort made by them virtually did not leave anything for the Lt. Governor. It is on the basis of note dated 07.08.2014 that the impugned order appointing the inquiry officer was passed.
20. From the discussion undertaken above, it becomes clear that the one passed on 28.02.2013 by the then Lt. Governor is an order pure and simple, and it did not leave any doubt regarding the decision to drop the proceedings. Though it was necessary to obtain the second stage advice from the CVC, such an advice did not have the effect of altering the decision of the disciplinary authority. In a given case, the disciplinary authority may be impressed to change the earlier order to drop the proceedings, and to resurrect them in view of the second stage advice of the CVC.
21. The administration itself treated the order dated 28.02.2013 as final, and without even feeling the necessity to refer the matter once again to the Lt. Governor, they informed the CVC stating that in view of the decision taken by the Lt.
OA-3249/2015 18 Governor, the proceedings are dropped. It is important to note that this communication was issued after receiving the second stage advice. For all practical purposes, the communication dated 28.02.2013 should have closed the entire issue. However, for reasons best known to the Chief Secretary and other officers, who took part in the entire episode, they adopted a totally untenable course of action.
22. It is strongly urged by the learned counsel for the respondents that the order dated 28.02.2013 cannot be treated as final. Reliance is placed upon the judgment of the Hon‟ble Supreme Court in Bachhittar Singh v State of Punjab (supra). That was a case in which the Revenue Minister of the then Pepsu Government made a note in the disciplinary proceedings of an employee, which, in turn was not accepted by the Cabinet. The plea that the note of the Revenue Minister be treated as an order in itself, was rejected, and after referring to the Rules of Business, it was held that the decision of the Cabinet alone can be treated as the one which becomes enforceable. The relevant paragraph reads as under:
"...We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the OA-3249/2015 19 Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the „order‟ of the State Government? Therefore to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v. Sodhi Sukhdev Singh [(1961) 2 SCR 371]."
Such is not the case here. In terms of the text, the order dated 28.02.2013, is authored by the ultimate authority, i.e., the Lt. Governor, and it was not subject to approval by any superior authority, unlike in the case of a Cabinet. Secondly, the communication part of it was also complete, as is evident in two circumstances. The first is that the Lt. Governor himself directed that the order be communicated to the applicant. Non- communication of it by the secretariat staff is defiance, and their defiance cannot have the effect of taking away the authenticity of the order of their ultimate authority. Secondly, the letter dated 20.02.2014 addressed to the CVC, made the communication complete, without the necessity of any further steps.
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23. Another important aspect is about the power of the successor Lt. Governor to review the orders of his predecessor. It has already been mentioned that the successor Lt. Governor has taken an objective view of the matter, when it was first taken to his notice. Unhesitatingly, he treated that what is under consideration before him was an order of his predecessor. The well established principle of law is that the power of review must emanate from the relevant statute, and in the absence of such a conferment, it cannot be exercised. To be precise, the power of review is something which needs to be conferred but not inferred.
24. Viewed from any angle, the review undertaken by the successor Lt. Governor was totally untenable in law. The order impugned in the OA is the result of such a review. We, therefore, allow this OA and set aside the order impugned. There shall be no order as to costs.
( Pradeep Kumar ) ( Justice L. Narasimha Reddy ) Member (A) Chairman /as/