Central Administrative Tribunal - Delhi
Manish Kumar vs Union Of India Through The on 16 April, 2014
Central Administrative Tribunal Principal Bench, New Delhi. OA No.3289/2012 Reserved On:12.03.2014 Pronounced On:16.04.2014 Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Manish Kumar R/o 291 DDA SFS Flats Gate No.6, Gulmohar Enclave, New Delhi-110049. Applicants By Advocate: Shri A.K. Behera. Versus 1. Union of India Through the Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi-110001. 2. The Chairman, Central Board of Excise and Customs, North Block, New Delhi-110 001. 3. The Chairman, The Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi. Respondents (By Advocate: Shri Rajeev Kumar) O R D E R
Mr. G. George Paracken, Member (J) In this Original Application, the Applicant has sought a direction to quash and set aside the Office Order No.39/2011 dated 06.09.2011 issued to him by the Respondents imposing upon him the penalty of Censure.
2. The brief background of this case: The Applicant is an officer belonging to Indian Customs and Central Excise Service. He joined the service as an Assistant Commissioner of Customs in the year 1993. Thereafter, he got his promotions as Deputy Commissioner of Customs in the year 2002 and as Additional Commissioner in the year 2006.
3. During the period from 23.06.2003 to August, 2007, he was on deputation to Container Corporation of India Limited (CONCOR for short). The work assigned to him was to coordinate between the CONCOR and the Customs Department. Within three months of his joining the CONCOR, there arose an occasion to award tenders for providing conveyance/cars for the officers in the rank of General Manager and above. The Senior Officer (Commercial and Operations) framed the tender documents, and the Chief General Manager approved them. The tenders received were opened by the Tender Opening Committee (TOC for short) and those tenders were evaluated by the Tender Evaluation Committee (TEC for short) wherein the Applicant was also a Member. Finally, the Tender Accepting Authority (TAA for short) accepted the recommendation of the TEC. The TOC was entrusted with the tasks of opening the tenders and verifying the documents for determining the eligibility criterion of the bidders. After the TOC verified the details of each bidder, it submitted its report to TEC. The TEC proceeded on the basis of report of TOC. Thereafter, the tender documents were duly prepared and floated by the Senior Officer (Commercial and Operations) in consultation with the Chief General Manager who was also the TAA. 15 tender documents were purchased by various transport service providers, out of which 5 were filled up and submitted. Those 5 tender forms were opened by members of the TOC and detailed analysis was made by them relating to the eligibility criteria of the bidders. According to the Minutes of the TOC, the eligibility criteria of having a registration certificate to act as a travel agency was met by only two of the bidders, namely, M/s Rani Travels and M/s Namrata Travels. The complainant Ms. Nishant Travels did not qualify the eligibility criteria at all. The TEC succeeded in reducing the prices quoted by M/s Rani Travels from Rs.16000+ Rs.23,700 to Rs.16,000 + Rs.23000. Additionally, there were further reductions made in the mileage costs. TEC issued the Minutes of its meeting held on 21.10.2003. Finally, M/s Rani Travels was preferred over its competitor for the following reasons:-
(a) It was the lowest bidder;
(b) It agreed to further reduce the price on negotiations; and
(c) It was already supplying five vehicles of which three were on regular basis to the organization since the last 2 years and without any major complaints.
According to the Applicant, as a member of the TEC, he proceeded on the bona fide belief that the report forwarded by TOC to ascertain the eligibility criterion of bidders was proper. Therefore, he was not responsible for the report of eligibility criteria submitted by the TOC.
3. After accepting the recommendations of the TEC, the TAA issued the letter dated 23.10.2003 calling upon M/s Rani Travels to sign the contract for undertaking the job. On receipt of the aforesaid letter, M/s Rani Travels informed the CONCOR, vide letter dated 30.10.2003, seeking a slight change in the security deposit amounts from Rs.1,50,000/- to Rs.50,000/-. The said concession was sought by the Contractor on the grounds as under:-
(i) He was an existing Contractor; and
(ii) Monies dues and payable to him to a minimum of Rs.1.25 lakhs were always pending payment with the CONCOR on account of the bills being paid off belatedly. The CONCOR always owed this Contractor a minimum of Rs.1 lakh.
The Applicant forwarded the aforesaid letter with his recommendation to the Chief General Manager/TAA to enable him to take an informed decision in the matter. The TAA, vide its note dated 31.10.2003, accepted the suggestion but failed to direct the Accounts Department to withhold payment of Rs.1 lakhs at all points of time. Thereafter, M/s Nishant Travel made a complaint on 08.11.2003 regarding the aforesaid procedure but the same was rejected vide noting dated 27.11.2003. Thereafter, the vigilance decided to enquire into the entire tendering operations. Consequently, the Board of Directors of the CONCOR decided to impose the penalty of Censure upon Mr. Arvind Bhatnagar, Chief General Manager/TAA. In the order dated 27.10.2009, the following charges were held to be proved against him:-
As the Tender Accepting Authority, Shri Arvind Bhatnager had accepted the recommendations of the TEC in violation of tender clause No.1 and V of the tender despite the fact that none of the tenders despite the fact that none of the tenders fulfilled the eligibility criteria on the last date of submissions of tenders, i.e., 06.10.2003.
4. However, according to the Applicant, the Respondents have finally held that Shri Arvind Bhatnagar was not guilty and no punishment was imposed upon him.
5. Nearly after an year of passing the order in the case of Mr. Arvind Bhatnagar the CVO/Director General of Vigilance, Central Board of Excise and Customs issued charge sheet dated 07.10.2010 against the Applicant under Rule 16 of the CCS (CCA) Rules, 1965. The statement of imputation of misconduct or misbehaviour against him furnished with the aforesaid Memorandum is as under:-
CONCOR/WR had floated a tender for TATA INDICA vehicle on monthly hiring basis for CONCOR JNPT & Mumbai Regional office. The Notice Inviting Tender (NIT) was published in Navbharat newspaper on 19.09.2003. The total estimated cost was Rs.14.4. Lakhs, for the duration of 2+1 years. The EMD stipulated was Rs. 25,000/-. Following five parties had participated and offered their bids:
M/s Jyoti Travels M/s Aman Travels M/s Rani Travels M/s Nishant travels M/s Namrata Travels As per tender document, para 1 (RUD-1 of Annexure III), the eligibility criteria had been specified as under:
Enclose copy of certificate of Registration to act as a Travel agency The agency should submit satisfactory proof of having at least two nos. of Tata Indica vehicle. The vehicles deployed shall be of post 2002 make.
Preference will be given to Registered Travel Agency, who had T Mark vehicles.
None of the bidders including M/s Rani Travels, who was awarded the contract and M/s Nishant Travels, who was the complainant in the instant case, had fulfilled the eligibility criterion and they should not have been technically qualified. The best course of action at that stage would have been to discharge the tender. But the Tender Evaluation Committee (TEC) had qualified all the ineligible contractors. This was not in line with the CVC guidelines and against the spirit of transparency in the tendering process. The members of TEC for above tender were as under:
(i) Shri Arvind Bhatnagar, CGM/Western Region
(ii) Shri R.K. Sinha, SGM (C&O)
(iii) Shri Manish Kumar, GM (C&A)
(iv) Shri G B Dash, JGM (F&A) During the course of investigation, the following irregularities have been noticed:-
PRE-TENDERING PROCESS a. The tender document was not specific with regard to actual number of days in a month for which vehicles was proposed to be used. The tender gave an impression that the vehicle would be required even on Sundays and other holidays.
b. The tender did not specify whether the offers had been invited for an A/c car or a non-A/c car or for both.
c. The mileage fixed for vehicle for JNPT did not have the approval of the competent authority. Even though CGM had made out a case before the DIMO for increasing the mileage form 2000-3000 Kim., The approval of DIMO was not there on this issue.
2. TENDER EVALUATION a. None of the bidders was found to be fulfilling the eligibility criteria as mentioned in the tender document.
b. Despite this, the TEC members decided to go ahead with the tender evaluation stating grounds of urgency, avoiding further delay in the tendering process and also reducing the cost associated with inviting fresh tenders especially the advertisement cost.
c. The TEC members did not take into account various conditions mentioned by certain bidders specially, M/s Nishant Travels who happens to be complainant in this case, and thus their evaluation of tenders was not proper.
In view of (a), (b) and (c) above, TEC members failed to present a clear picture before the TAA.
3. TENDER APPROVAL CGM/Western Region who was the tender approving authority in the instant case did not discharge the tender despite the fact that none of the offers was fulfilling the requisite eligibility criterion.
4. AFTER AWARD OF TENDER (A) On a note from Shri Manish Kumar, GM(Customs & Administration), the CGM agreed to reduce the security deposit from Rs.1,50,000/- to Rs. 50,000/- on the following grounds:
(i) The security deposit asked on previous occasions never exceeded Rs.10,000/- per vehicle i.e. Rs.20,000/- for two vehicles.
(ii) the lowest tenderer happens to be the existing contractor whose bills pending for payment with CONCOR at any point of time exceeded an amount of Rs.1 Lacs.
While according such an approval, CGM should have ordered for deducting Rs.1 Lakh from the pending bills of the existing contractor (lowest tenderer), M/s rani travels.
The reduction in the security deposit led to the rebates offered by other tenderers becoming operative, though it is a different matter that it did not result into any financial loss to CONCOR as even after allowing for 6 percent rebate offered by the complainant, M/s Rani Travels remained the lowest tenderer for both the vehicles combined.
Thus by the aforesaid act of omission and commission, Shri Manish Kumar has shown lack of devotion of duty and has acted in a manner unbecoming of a Govt. servant and thereby contravened the provisions of Rule 3 (1)(ii) and Rule 3 (1)(III) of the CCS Conduct Rules, 1964 read with clause 4 (ii) for commission of sub clause (e), (i), (s) & (t) of clause 5 of CONCOR Discipline and Appeal Rules.
6. In response to the aforesaid charge sheet dated 07.10.2010, Applicant made a detailed representation on 19.10.2010 as required under Rule 16 of the CCS (CCA) Rules, 1965 highlighting the various issues. He has stated that he had no role in the preparation of the tender document or seeking relevant approvals for the mileages of the tendered vehicles. He has also stated that the due approval of the DIMO was very much there. He has submitted that the eligibility criteria was fulfilled by two bidders, i.e., M/s Rani Travels and Ms/ Namrata Travels. He has also denied all the charges against him with detailed reasons and requested the vigilance to close the case. Thereafter, the Respondent-Central Board of Excise and Customs referred the matter to UPSC for its advice and the UPSC vide its advice dated 09.08.2011, advised the Respondents to impose the punishment of Censure upon the Applicant. The relevant part of its advice is as under:-
4.1 The Commission observe that the CO was on deputation to CONCOR and his job was pertaining to Customs coordination. He had no knowledge or experience of handling tenders in his parent cadre. He had joined CONCOR barely three months back. Documents show that one of the terms and conditions for hiring vehicle was that vehicle shall be post 2002 make. Details of bidder show that neither of the five bidders fulfilled the eligibility criteria and M/s Rani Travels merely stated that they would deploy the vehicles subject to award of tender and after negotiation reduced their rates and submitted assurance to provide two new Tata Indica vehicles subsequently. It is on record that TEC qualified the ineligible contractors and failed to present a clear picture before the Tender Accepting Authority (TAA) and the CO was a member of TEC. It is on record that the minutes of the TEC were approved by the Tender Accepting Authority, i.e., CGM, Western Region after consideration of all facts and acceptance of recommendation of TEC.
4.2 The Commission observe that regarding reducing the security deposit from Rs,1,50,000/- to Rs.50,000/- the DGM, Vigilance, CONCOR has rightly commented that Shri Manish Kumar had mentioned that Rs.100000/- worth bills of the party were in any case pending for payment in any particular month. It was required on the part of the approving authority, i.e., CGM to either reject such a proposition from the CO or order the Accounts Division to block Rs.1,00,000/- from the pending bills of the contractor, more so when the CGM himself had approved draft tender document including the condition relating to fixing the security deposit at Rs.1,50,000/-. The noting of Shri Manish Kumar does not appear to be guided by any ulterior motive and did not result into any financial loss to CONCOR. The Commission observe that the lapse of CO is a marginal one.
5. In the light of their findings, as discussed above, and after taking into account all other aspects relevant to the case, the Commission consider that the ends of justice would be met in this case if the penalty of Censure is imposed on the CO. Shri Manish Kumar, IRS. They advice accordingly.
7. Thereafter, the President, in his capacity as the Disciplinary Authority, rejected the representation of the Applicant and imposed the penalty of Censure upon him vide the impugned penalty order dated 06.09.2011. The relevant part of the said order reads as under:-
And whereas, the DA after considering the representation of the CO decided to impose a suitable minor penalty on the CO and for referring the case to UPSC for their statutory advice.
And whereas, UPSC, inter alia, has observed that CO was on deputation to CONCOR and his job was pertaining to customs coordination. He had no knowledge or experience of handling tenders in his parent cadres. He had joined CONCOR barely three months back. The documents show that one of the terms and conditions for hiring vehicle was that vehicle shall be of post 2002 make. Details of bidder show that neither of the five bidders fulfilled the eligibility criteria and M/s Rani Travels merely stated that they would deploy the vehicle subject to aware of tender and after negotiation reduced their rates and submitted assurance to provide two new Tata India vehicles subsequently. It is on record that Tender Evaluation Committee (TEC) qualified the ineligible contractors and failed to present a clear picture before the Tender Accepting Authority (TAA) and the CO was a member of Tender Evaluation Committee. The minutes of the TEC were approved by the Tender Accepting Authority i.e. CGM Western Region.
And whereas, Commission regarding the allegation of reduction the security deposit from Rs.1,50,000/- to Rs.50,000/- has further observed that DGM Vigilance, CONCOR is right in commenting that Shri Manish Kumar had mentioned that Rs. 1,00,000/- worth bills of the party were in any case pending for payment in any particular month. It was required on the part of the approving authority i.e. CGM to either reject such a proposition from the CO or order the Accounts Division to block Rs. 1,00,000/- from the pending bills of the contractor, more so when the CGM himself had approved draft tender document including the condition relating to fixing the security deposit as Rs. 1,50,000/-. The noting of Shri Manish Kumar does not appear to be guided by any ulterior motive and did not result into any financial loss to CONCOR. The Commission observe that the lapse of CO is a marginal one.
And Whereas, the UPSC has advised that end of justice would be met if a penalty of Censure is imposed upon Shri Manish Kumar, the CO And whereas, taking into consideration all relevant factors and records, the advice of UPSC seems to be just, fair and reasonable and may be accepted.
Now, therefore, the President, after careful examination of all relevant facts of the case and advice of UPSC, has decided to impose a penalty of Censure upon Shri Manish Kumar, the CO (BY ORDER AND IN THE NAME OF PRESIDENT) (Akhtarul Hanif) Under Secretary to the Govt. of India
8. The Applicant has challenged the aforesaid charge sheet dated 07.10.2010 and the order of the Disciplinary Authority dated 06.09.2011 in this Original Application. According to him, order dated 06.09.2011 is perverse and on the face of it, is illegal and unsustainable in the eyes of law. He has also alleged discrimination even in the mater of imposing penalty. While the Board of Directors of the Container Corporation of India decided to impose the penalty of Censure upon Shri Arvind Bhatnagar, the Chief General Manager and the Accepting Authority of the tender, no punishment was finally imposed upon him. But the Applicant who had only the recommending role has been punished even though there was not any allegation of extraneous consideration against him in the charge sheet.
9. He has also alleged that the impugned order is perverse inasmuch as the Disciplinary Authority failed to supply copy of the UPSCs advice dated 09.08.2011 based on which the impugned punishment has been imposed upon him. Therefore, the said order of the Disciplinary Authority is in violation of the principles of natural justice. As the impugned order has been passed entirely on the basis of the advice of the UPSC, the Applicant should have been given was not given an opportunity to rebut the said advice. In this regard he has relied upon the judgment of the Apex Court in the case of Union of India Vs. S.K. Kapoor 2011 (4) SCC 589 wherein it has been held that if any material is to be relied upon in departmental proceedings, then its copy must be supplied in advance to the charge sheeted employee so that he may have the chance to rebut the same. Further, it has been stated therein that if the authorities consult UPSC and rely upon its report for taking disciplinary action, then copy must be supplied in advance to the employee concerned, otherwise it would amount to violation of principles of natural justice. However, if the disciplinary authority does not rely on the UPSCs advice, copy of the same need not be supplied to the employee concerned. The relevant part of the said judgment reads as under:-
5. It is a settled principle of natural justice that if any material is to be relied upon in departmental 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.
XXX XXX XXX
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
He has also relied upon an order passed by this Tribunal in OA No.760/2005 R.K. Sareen Vs. U.O.I. and Others decided on 12.08.2011 wherein it has been held as under:-
9. Thus, in view of the law laid down by the Apex Court in the case of S.K. Kapoor (supra), leaving other grounds open, we are of the view that the impugned order is required to be set aside and matter is required to be remitted back to the disciplinary authority on the limited ground that the disciplinary authority shall pass fresh order after taking into consideration the objections to be filed by the applicant against the report submitted by the UPSC, copy of which has already been made available to the applicant along with the aforesaid impugned order. The applicant is directed to file objections to the report of the UPSC within a period of one month from today. In case, such objections are filed by the applicant within the aforesaid stipulated period, in that eventuality, disciplinary authority shall consider the same and pass reasoned and speaking order within a period of two months from the date of receipt a copy of this order.
10. The OA is disposed of in the aforesaid terms with no order as to costs. The aforesaid order has been upheld by the Honble High Court of Delhi in W. P. ( C) No.476/2012 Union of India and Another Vs. R.K. Sareen decided on 24.01.2012. The relevant part of the said order is reproduced as under:-
2. One of the pleas taken by the respondent was that the copy of the UPSC advice was not supplied to the respondent before the competent authority passed the order which was impugned before the Tribunal. It was further contended that although the said copy was not supplied to the respondent, the competent authority had placed reliance on the said UPSC advice.
3. Before the Tribunal, the petitioner herein, had sought support from the decision of the Supreme Court in the case of Union of India v. T. V. Patel: 2007 (4) SCC 785. However, the Tribunal noted that the Supreme Court in a subsequent decision in the case of Union of India v. S. K. Kapoor: 2011 (4) SCC 589 took the view that the decision in Union of India v. T. V. Patel (supra) was per incuriam inasmuch as the earlier decision in the case of S. N. Narula v. Union of India & Others: Civil Appeal No.642 of 2004 decided on 30th January, 2004, had not been considered in Union of India v. T. V. Patel (supra). Following the decision of the Supreme Court in Union of India v. S. K. Kapoor (supra), the Tribunal came to the conclusion that the non-supply of the UPSC advice to the respondent prior to the competent authority taking the decision, which was relied upon by the competent authority, was not appropriate.
4. It is in these circumstances that the Tribunal passed the directions which are extracted above. We see no reason to interfere with the Tribunals order. A similar issue had arisen before us in Union of India v. Yogita Swaroop: WP(C) 265/2012 on 13.01.2012, wherein we had observed as under:-
5. It is apparent that the advice of the UPSC has been relied upon entirely. The fact that the UPSC advice was not given to the respondent prior to the order dated 26.11.2009 being passed clearly indicates that she has been denied an opportunity to make a representation against the said advice and to submit her point of view. Consequently, insofar as the question of prejudice is concerned, it is writ large in the facts and circumstances of this case. The Tribunals order, therefore, cannot be faulted on this aspect of the matter.
5. Consequently, following the same line of thought, this writ petition is liable to be dismissed. It is ordered accordingly.
10. The learned counsel for the Applicant has also submitted that the charge against the Applicant was vague. He has submitted that the qualification of successful bidder was as per the provisions of the tender document. The recommendation made on reduction was merely a suggestion to the higher authority on which the said authority has to act. Had the Applicant chosen not to send the recommendation, he would have been responsible for not acting on the letter received by the successful bidder. In this regard he has relied upon the judgment of the Apex Court in the case of Zunjarrao Bhikaji Nagarkar Vs. Union of India 1997 (7) SCC 409 wherein it was held that Disciplinary Authority can act only where there is a reasonable basis to even form a prima facie case against an officer. Vague or indefinite information cannot be the basis of disciplinary proceedings. The report of the UPSC or the charge memo or the final order do not list any ground based on concrete evidence or reasonableness that can initiate a disciplinary proceedings against the Applicant. The relevant part of the said judgment reads as under:-
41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed 'favour' to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi judicial authority. It must be kept in mind that being a quasi judicial authority, he is always subject to judicial supervision in appeal.
42. Initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty.
43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
44. Considering whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. Charge of misconduct against him was not proper. It has to be quashed.
11. Further, the learned counsel for the Applicant has submitted that the charge against the Applicant was factually incorrect and erroneous. The allegation that none of the bidders were satisfying the eligibility criteria despite which the TEC members decided to go ahead with the evaluation process was factually incorrect. On the other hand, the fact of the case was that the TOC had clearly established the factum of satisfaction of the eligibility criteria by M/s Rani Travels. The Applicant had, therefore, clearly gone ahead based on the findings recorded by the TOC. Had the Applicant along with the TEC members cancelled the entire process, the same would have resulted in a minimum loss of Rs. One lakh besides a continuous loss of Rs.5000/- per month as re-tendering would have taken another 6 to 8 months. He has also submitted that so far as allegation made against him in para 2-c is concerned, there was not a word written in the entire charge indicating which additional conditions were set out by M/s Nishant Travels were not considered by the complainant. According to him, an elementary understanding of the Tender Process by a man of reasonable prudence would indicate that the moment M/s Nishant Travels failed to satisfy the minimum eligibility criteria, the question of further consideration of his case does not arise. He has also pointed out that there is self contradiction in the charge sheet itself. The Disciplinary Authority was fully aware of the fact that that the tender was in fact awarded to the lowest tenderer and further that no loss whatsoever was caused to the CONCOR and neither is there an allegation of causing any gain whatsoever either to M/s Rani Travels or to the officer himself. Hence, none of the ingredients of misconduct is present in the instant case.
12. He has also stated that the Disciplinary Authority itself has admitted that the Applicant was new to his job and had no knowledge about the tendering. The non-deducting of Rs.One lakh from the travel companys bills is alleged against the CGM who happened to be the TAA whereas the Applicant is sought to be punished for the same. He has also stated that the TEC being only a recommendatory body whose recommendation need not be accepted by the TAA. Despite the aforesaid fact, the penalty was imposed upon the Applicant.
13. The learned counsel for the Applicant has also relied upon the judgment of the Apex Court in the case of Inspector Prem Chand Vs. Government of NCT of Delhi and Others 2007 (4) SCC 566 and argued that the allegations made against the Applicant do not amount to any kind of misconduct. The relevant part of the said judgment is as under:-
9. Before adverting to the question involved in the matter, we may see what the term 'misconduct' means.
10. In State of Punjab and Ors. vs. Ram Singh Ex. Constable [1992 (4) SCC 54], it was stated:
"5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as:
"Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under:
"The term 'misconduct' implies, a wrongful intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."
[See also Bharat Petroleum Corpn. Ltd. vs. T.K. Raju, [2006 (3) SCC 143].
12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has placed reliance, this Court held so stating:
"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." [Emphasis supplied]
14. The Respondents in their reply have denied the contentions of the Applicant. They have stated that the contention of the Applicant in particular that the tender document did not provide that failure of eligibility criterion would result in automatic discharge of tender. If this were so, there is no reason as to why a tender document should have the eligibility criterion in first place. The clause ( c) under eligibility refers to preference in respect of T mark vehicles over the ones no having T mark and not that the bidder fulfilling at least one eligibility clause (M/s Rani Travels in the instant case would be preferred to other equally ineligible bidders. The Applicant did not have the discretion to alter the scope of the eligibility criterion after the Tender had been advertised.
15. They have also stated that every case is thoroughly examined by the Commission with the prime focus on upholding the principles of natural justice. They also have independent opinion without any bias and it is tendered on the basis of conclusions arrived at after thorough, judicious and independent consideration of all the relevant facts, charges framed and representation of the Charged Officer, Inquiry Officer wherever inquiry is held and other circumstances supported by the documents/evidence on record. The Commissions advice, however, is not binding upon the Disciplinary Authority, who can arrive at its own conclusions after taking into consideration the advice of the Commission.
16. They have also stated that the recommendation of the name of M/s Rani Travels for award of contract by the TEC of which the applicant was also a member, was despite their being ineligible for bidding in fact renders all other plusses including being the lowest bidder of the successful bidder redundant. Award of the contract to the said successful bidder even when no financial loss in fact had accrued to CONCOR, can not therefore be a ground for dropping of the charges.
17. As regards the judgment in the case of S.K. Kapoor, they have stated that it is well settled principle that the Disciplinary Authority is not required to furnish the copy of the advice tendered by the UPSC to the charged officer before the final order of penalty is passed. It is not a case of the disciplinary authority relying on the advice of the UPSC. In fact, the disciplinary authority had taken a tentative decision to impose a minor penalty on the applicant and made a reference to the UPSC regarding quantum of penalty. As per Article 311 of the Constitution, as amended vide 42nd amendment, no opportunity is required to be afforded to the charged officer to represent against the penalty proposed to be imposed. The Applicant has not specified any violation of the provisions of the CCS (CCA) Rules 1965. They have also denied the contention of the Applicant that the charge memo was vague. They have stated that the proceedings were initiated strictly in accordance with the prescribe procedure. They have also stated that there was no contradiction in the charge memo as alleged because criteria to initiate disciplinary proceedings against the Applicant were in violation of the provisions of the CCS (Conduct) Rules and not the loss of revenue. The respondents have also relied upon the judgment of the Apex Court in SBI Vs. Bela Bagchi 2005 AIR SCW 414 wherein it has been observed that where an employee has committed a misconduct by acting beyond his authority, it is no defence to say that no loss has occurred to the employer .
18. We have heard the learned counsel for the Applicant Shri A.K. Behera and the learned counsel for the Respondents Shri Rajeev Kumar. In our considered view, the very initiation of the proceedings against the Applicant under Rule 16 of the CCS (CCA) Rules, 1965 was unwarranted and uncalled for. It is seen that it was on the recommendation of the Vigilance Department of CONCOR that the decision was taken to initiate disciplinary proceedings against the Applicant. When the complaint of the unsuccessful bidder M/s Nishant Travel was received by the CONCOR, the said Vigilance Department did not apply its mind properly. Instead, as an easy way out, in the first instance, they recommended disciplinary action against the Tender Accepting Authority (TAA), Mr. Arvind Bhatnagar, Chief General Manager. On the recommendations, the Board of Director of CONCOR, accordingly, vide order dated 27.10.2009, decided to impose the penalty of Censure upon him. However, the CONCOR finally accepted his plea of innocence and held that he was not guilty. The Applicant had also made representation dated 06.08.2007 to the Managing Director, CONCOR to close the case against him. Later on, on completion of his period of deputation, he was reverted to his parent cadre on 27.08.2007. However, his parent office issued him the impugned charge sheet dated 07.10.2010 under Rule 16 of the CCS (CCA) Rules, 1965 for imposition of minor penalty. The Disciplinary Authority sought the advice of the UPSC in the matter. The UPSC in its advice dated 09.08.2011 observed that the Applicant was on deputation to CONCOR and his job was pertaining to Customs coordination. He had no knowledge or experience of handling tenders in his parent cadre. He had joined CONCOR barely three months back. The UPSC further observed in its advice that Shri Manish Kumar (the Applicant herein) did not appear to have been guided by any ulterior motive and did not result into any financial loss to CONCOR. The Commission observe that the lapse of CO is a marginal one. Thereafter, the UPSC advised the Disciplinary Authority that ends of justice will be met in the case of the Applicant, if the penalty of Censure is imposed upon him. The said advice was accepted by the Disciplinary Authority and without furnishing a copy of the same, imposed the punishment of Censure upon the Applicant straightaway vide the impugned order dated 06.09.2011. Apart from violation of the principles of natural justice by the Disciplinary Authority by imposing the penalty upon the Applicant without even furnishing a copy of the UPSCs advice and thereby denying him the opportunity to rebut the finding of the UPSC, the question is whether UPSC was right in advising the Disciplinary Authority to impose the penalty of Censure upon the Applicant in the light of their own observation in the matter as aforesaid. In other words, whether any misconduct was held to be proved against the Applicant. The misconduct in office as defined in Blacks Law Dictionary and considered by the Apex Court in the case of Inspector Prem Chand (supra), is the willful and unlawful behaviour by the Public Officer in relation to the duties of his office. The Apex Court has further considered the definition of the term misconduct given in P. Ramanatha Aiyars Law Lexicon. It says the term misconduct implies, a wrongful intention, and not a mere error of judgment. Again, according to Stroud's Judicial Dictionary "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct. In the present case, the Disciplinary Authority has imposed the punishment of Censure upon the Applicant squarely based upon the advice of the UPSC. However, in its advice, the UPSC themselves have noted that the Applicants job was pertaining to Customs coordination. He had no knowledge or experience of handling tenders in his parent cadre. He had joined CONCOR barely three months back. Again, they have noted that the Applicant was not guided by any ulterior motive and did not result into any financial loss to CONCOR. Again, they have observed that there occurred only a lapse of marginal nature from the Applicant. When the UPSC themselves are of the opinion that there was no ill-motive on the part of the Applicant and only a lapse of marginal nature has only has occurred from the Applicant, their logical conclusion should have been that the Applicant was not guilty of the charges leveled against him. When the Applicant was found not guilty, imposition of any penalty, howsoever minor it is, is unwarranted. When the Commission itself was of the view that the Applicant has not committed any misconduct as understood in its common parlance, it should have openness to say so instead of advising the Department to impose the minor penalty of Censure, as if in every cases of allegation, some or the other punishment is necessarily to be given to the Government employee. The Disciplinary Authority has also accepted the aforesaid advice of the UPSC without any application of mind and without realizing that even a penalty of Censure may mar the otherwise clean image of a Government servant. Therefore, in our considered view, both the advice of the UPSC as well as the impugned punishment of Censure imposed upon the Applicant are without any evidence against him and, therefore, they are perverse. In view of the above position, we are not inclined to go into the other grounds taken by the Applicant in challenging the impugned order of punishment.
19. Consequently, we quash and set aside the impugned charge sheet dated 07.10.2010 and the impugned order dated 06.09.2011. The Respondents shall also pass appropriate orders in implementation of the aforesaid order within a period of two months from the date of receipt of a copy of this order. Further, it goes without saying that the Applicant is entitled to all consequential benefits if any such benefits have been denied to him in view of the aforesaid impugned order of penalty. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
Rakesh