Central Administrative Tribunal - Chandigarh
Neeraj Soi vs Central Excise &Amp Customs on 20 December, 2021
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OA.No.60/1090/2021/CAT/Chandigarh Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH, CHANDIGARH
ORIGINAL APPLICATION NO.60/01090/2021
ORDER RESERVED ON 11.11.2021
DATE OF ORDER: 20.12.2021
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh Bench
at Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore Bench
at Bangalore)
Neeraj Soi son of Sh.Vinod Soi, aged 38 years, Joint Commissioner, office of
Commissioner of Customs, GRFL, Sahnewal, Ludhiana, resident of Flat
No.702, Royal Sherwood Tower, Omaxe, Pakhowal Road, Ludhiana.
....Applicant
(By Advocate Shri Puneet Gupta - through video conference)
Vs.
1. Union of India, Ministry of Finance, Department of Revenue, Central Board of
Indirect Taxes and Customs (CBIC), North Block, New Delhi through its
Secretary. PIN Code-110001. Email ID: [email protected]
2. The Chief Commissioner of Central Goods and Service Tax and Central Excise,
Chandigarh, Central Revenue Building, Sector 17, Chandigarh. PIN Code-
170017. Email ID: [email protected]
3. The Principal Additional Director General (Vigilance), Central Board of
Indirect Taxes and Customs, North Zonal Unit, 2ndFloor, C.R.Building,
I.P.Estate, New Delhi. PIN Code-110002. Email ID: [email protected]
4. The Principal Commissioner, Central Goods and Service Tax Commissionerate,
Block F, Rishi Nagar, Ludhiana. PIN Code-170017. Email ID: commr-
[email protected]
5. The Chief Vigilance Officer and Principal Director General (Vigilance), Central
board of Indirect Taxes and Customs Offices Vigilance, 6th Floor, HUDCO
Vishala Building, B-Wing, BhikajiCama Place, R.K.Puram, New Delhi. PIN
Code-110066. Email ID: [email protected]
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OA.No.60/1090/2021/CAT/Chandigarh Bench
6. The Additional Director General-II, Ad-V, Central Board of Indirect Taxes and
Customs Offices Vigilance, 6th Floor, HUDCO Vishala Building, B-Wing,
BhikajiCama Place, R.K.Puram, New Delhi. PIN Code - 110066. Email ID:
[email protected]
....Respondents
(By Advocate Shri Sanjay Goyal, Sr.CGSC- through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:
a) Direct the respondents not to proceed on the basis of anonymous/pseudonymous complaints against the applicant since the Vigilance Manual 2017 mandates not to entertain any anonymous/ pseudonymous complaints.
b) Respondents are also directed not to proceed on the basis of the report dated 31.10.2018 (Annexure-A7) prepared by the subordinate of the applicant.
c) To direct the respondents to consider the representations dated 09.03.2020, 17.03.2020 and 23.06.2020 and the provisions laid down in the Vigilance Manual 2017 prior to proceeding further on the basis of the anonymous/pseudonymous complaints.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was initially appointed as an Assistant Commissioner on 09.12.2009 in the respondent department. Thereafter, he was promoted as Deputy Commissioner, Central Excise and Service Tax Division-III on 14.07.2014. He was further promoted as a Joint Commissioner on 01.01.2019 and is working as such till date.3
OA.No.60/1090/2021/CAT/Chandigarh Bench
b) On 31.03.2017, the Directorate General of Human Resource Development (Infrastructure and Welfare Wing) sent a letter to all the Principal Chief Commissioners/Chief Commissioners, Central Excise and Service Tax and to all the Principal Directors General/Directors General, Central Board of Excise and Customs in respect of the setting up new offices relating to formations in the GST regime, which was to be made functional by 01.06.2017. It was requested that immediate appropriate steps be taken to identify requisite office accommodation.
c) The Deputy Commissioner (Admin.), Central Excise and Service Tax Commissionerate, Ludhiana issued the tender notice inviting applications for hiring of office accommodation for various GST Divisions and Range Offices across the Districts of Ludhiana, Moga, Ferozepur, Fazilka, Faridkot, Sri Muktsar Sahib, Barnala, Mansa, Bathinda, Sangrur and Fatehgarh Sahib.
d) The last date of receipt of the tender was 18.05.2017. The date of opening of the Technical Bid was 19.05.2017 and the Financial Bids of only those bidders was to be opened who fulfilled all the terms and conditions of the tender.
e) A Four Member Tender Committee comprising of Deputy Commissioner, GST Division, Ludhiana (Applicant), Superintendent (Headquarter), GST Division, Ludhiana, Superintendent (Range Office), GST Division, Ludhiana and Superintendent (Range Office), GST Division, Ludhiana, was constituted to scrutinize the Technical Bids and do the physical inspection of the buildings as per the terms and 4 OA.No.60/1090/2021/CAT/Chandigarh Bench conditions of the tender. The applicant was one of the Members of the Four Member Tender Committee.
f) After opening of the Technical Bids, the Tender Committee visited the premises of the bidders for the physical inspection on 16.06.2017. Total 9 tenderers participated in respect of the GST Division/Range Ferozepur. The Tender Committee submitted its finding vide letter dated 23.06.2017 in respect of the bidders and proposed that the Financial Bids in respect of bidder at Sl.No.1 to 5 mentioned in the letter dated 23.06.2017 may be opened as these bidders meet/fulfilled the terms and conditions of the tender.
g) A complaint dated 23.06.2017 was submitted by the residents of the Kakkar Complex, Near Shimla Talkies Cinema, Circular Road, Ferozepur City in respect of the hiring of the GST Division office in Kakkar Complex. This complaint was, interalia, made in respect of the following points:
a) The building is being constructed within the residential area.
b) The building is a closed residential complex.
c) The total area for the building is less than required as per the tender.
d) No inspection was done by any higher officer of the Central Excise and Service Tax Department.
e) No consent/affidavit in respect of the building was obtained from the local residents.
f) The building premises were not in commercial area. 5
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g) Due to the carrying out of the construction work of the building day and night by the tenderer of the building, the local residents were suffering lot of problems.
h) The widows, ladies and old persons are residing in the said area.
h) One more complaint was filed separately by one Sh.Subhash. On the basis of the above complaints, a Committee was constituted by the Deputy Commissioner (Vigilance), Central Goods and Service Tax Commissionerate, Ludhiana vide letter dated 06.09.2017 consisting of the Assistant Commissioner, Central Goods and Service Tax Division-I, Bathinda and two Range Superintendents, Central Goods and Service Tax Division-I, Bathinda for examining the points raised in the complaints filed by various complainants "against one of the applicant of the tender i.e. Mr. Ashok Kumar, Kakkar Tower, Circular Road, Ferozepur City."
i) In pursuance to the above, the Assistant Commissioner, Central Goods and Service Tax Division-I, Bathinda submitted his inquiry report on 31.10.2017 to the Commissioner, Central Goods and Service Tax Commissionerate, Ludhiana.
j) The relevant portion of the inquiry report dated 31.10.2017 is reproduced as below:
"The whole issue of accepting his bid for a building not in existence at the time of filing tenders and declaring it acceptable after physical verification appear to be done unfairly and the conduct of departmental officers entrusted with this work does not 6 OA.No.60/1090/2021/CAT/Chandigarh Bench appear to be above board in given circumstances and merit investigation. This aspect may be looked into at Hqrs. Office after ascertaining the verification report prepared by them regarding verification of the building not in existence before issue of letter dated 23.06.2017."
k) In pursuance of the above inquiry report, comments were sought on the findings of the report from the applicant by the Joint Commissioner (Vigilance/Admn.), Central Goods and Service Commissionerate, Ludhiana vide letter dated 15.12.2017. In response, the applicant requested the Joint Commissioner (Vigilance/Admn.), Ludhiana vide letter dated 20.12.2017 to provide the file pertaining to the tender floated for hiring of office premises at Ferozepur, the documents referred by the Assistant Commissioner in his inquiry report as enclosures, copies of the complaints dated 12.06.2017, 13.06.2017, 17.06.2017 and 23.06.2017 mentioned in the inquiry report and the written submissions, if any, given by the L1 bidder to the office after opening of the Technical Bid in order to enable to submit his reply.
l) In response thereto, some documents were supplied to the applicant vide letter dated 27.12.2017.
m) In response, the 4 Member Tender Committee submitted its detailed comments and denied all the aspersions made in the enquiry report vide letter dated 15.01.2018.
n) The applicant was asked vide letter dated 27.02.2018 to submit his reply to the observations made by the Joint Commissioner of Haryana in 7 OA.No.60/1090/2021/CAT/Chandigarh Bench respect of the original note prepared by the technical committee. In response, the applicant vide letter dated 28.02.2018 sent his reply.
o) The applicant has further contended that there were no specific complaints against any officer of the tender committee. The department failed to verify the antecedents of the complaints of the complainants. These complaints were anonymous or pseudonymous. The Assistant Commissioner, Central Goods and Service Tax Division-I, Bathinda, in his inquiry report has gone beyond the allegations levelled in the complaints. There was also no loss caused to the Government.
p) The applicant has further contended that the next promotion of the applicant as Addl. Commissioner is due w.e.f. 01.01.2022. Hence, the pendency of this enquiry has a bearing on the promotional prospects of the applicant as vigilance clearance is required for promotion.
3. The respondents in their reply statement, have averred as follows:
a) In the case of the applicant, no order has been impugned nor has any order been mentioned which can act as an underlying cause of action on the part of the applicant. There is no order by which the applicant may feel aggrieved. Hence, the OA has no merit and should be rejected at its threshold as it is absolutely bereft of any call for interference.
b) The averment made by the applicant that the complaint dated 23.06.2017 was anonymous/pseudonymous is not correct and is not supported by the facts on record. The complaint dated 23.06.2017 was duly verified by the Examining Committee constituted by the Dy. Commissioner, CGST 8 OA.No.60/1090/2021/CAT/Chandigarh Bench Commissionerate, Ludhiana. The Examining Committee had also interacted with the complainants to obtain their views as is evident from the report dtd.31.10.2017. Further the particulars of the complaints were also verified independently by the officers of North Zonal Unit, DG Vigilance on 25.04.2019 before starting investigation in the present matter.
c) The fact that the applicant was not named in the complaint and therefore his actions should not be investigated and acted against by the respondents is not correct and ultra vires. Any complaint has to be investigated in a comprehensive manner irrespective of the fact whether any person has been named therein or not. If any misconduct emerges on part of any erring officers, even if they are not specifically named in the complaints, then action merits to be initiated against the concerned officers as per rules/instructions/guidelines.
d) The investigation to the complaint dtd. 23.06.2017 was conducted during which the applicant had been provided many opportunities to place his submissions on record.
4. Heard learned counsels for the parties. The respondents were also directed to produce the records in original of the case. The records were accordingly produced by the respondents and these were also perused.
5. The primary contention of the applicant is that under the provisions of Vigilance Manual 2017, the respondents are not required to entertain any anonymous or pseudonymous complaints. In this particular case, the applicant has alleged that the initial complaints received by the department were 9 OA.No.60/1090/2021/CAT/Chandigarh Bench pseudonymous and hence as per Clause 3.4.2(a)(iv) of the Vigilance Manual, the respondents were not required to entertain such complaints. The complaints should contain the postal address, mobile/telephone no. etc., if any, of the complainants.
6. A perusal of the primary complaint dated 23.06.2017, copy of which has been placed on record, indicates that the complaint (in vernacular) contained the names and signatures of the complainants with the address indicated as "locality residents of Kakkar Complex, near Shimla Talkies Cinema, Circular Road, Firozpur City". The complaint indicates 10 complainants by name all with the same address. Moreover, as is evident from the records of the case submitted by the respondents, the Enquiry Committee headed by the Assistant Commissioner CGST Bhatinda, had visited Ferozepur and had interacted with the complainants. It is also specifically mentioned that two officers of NZU had also visited Ferozepur on 21.09.2017 and met the residents of Kakkar complex who stood by their allegations. This amounts to a physical verification of the complaint as well as the complainants. The contention of the applicant that these complaints, received from the residents of Kakkar complex, are pseudonymous, and should not have been taken cognizance of, is, therefore, erroneous, and without any basis.
7. A perusal of the record submitted by the respondents indicates that departmental proceedings were already initiated against two members of the four member tender committee, namely Sh. Sarvjeet and Sh. Sanjay Sarpal, and a minor penalty stands already imposed on both these officers on 6.9.2021 and 14.10.2021 respectively. The third member of the committee (Sh. Krishan 10 OA.No.60/1090/2021/CAT/Chandigarh Bench Chand) stood already retired on 28.02.2019 and hence no departmental proceedings were initiated against him.
8. The applicant had filed two representations dated 09.03.2020 & 17.03.2020 addressed to Principal DG, Directorate General of Vigilance, CBIC & CVC respectively. A third representation dated 23.06.2020 had also been filed addressed to Central Vigilance Commissioner. Besides this, a written submission had also been submitted by the applicant earlier on 05.01.2018 to the Joint Commissioner, Central GST Commissionerate, Ludhiana. Gist of all these representations was almost identical stating similar contentions as raised in the present OA. As per the record, these representations were duly examined and considered by the competent authority and were rejected on 11.10.2021.
9. A perusal of the original record also indicates that subsequent to the enquiry into the complaint, the case relating to the applicant had been referred to the CVC for its first stage advice on 09.03.2020, prior to receiving the representations mentioned above. The CVC, vide its OM dated 26.06.2020 has advised institution of a regular departmental enquiry (RDA) against the applicant. Subsequently, Charge Memo No.20/2021 has been issued to the applicant on 21.07.2021 in pursuance of the CVC advice dated 26.06.2020.
10.Keeping in view the above facts, as revealed from the records of the case produced by the respondents, the present OA filed by the applicant, praying for a direction to the respondents not to proceed with the vigilance enquiry, on the grounds that it is based on pseudonymous complaints is without any merit.
11.Accordingly, the OA is hereby dismissed.
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12. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
/ps/