Central Administrative Tribunal - Delhi
O.P. Malviya vs Union Of India on 1 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA 1151/2009 New Delhi this the 1st day of March, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr.L.K.Joshi, Vice Chairman (A) O.P. Malviya, S/o Sri V.L. Malviya, General Manager (E&M), ITDC, Project & Engineering Division Hotel Ranjit, Maharaja Ranjit Singh Road, Delhi-110002. Applicant ( By Advocate Shri K.N. Rai ) VERSUS
1. Union of India, Through the Secretary, Ministry of Tourism, Transport Bhawan, Parliament Street, New Delhi-110001.
2. Chairman-cum-Managing Director, ITDC Scope Complex, Core 8, 6th Floor, Lodhi Road, New Delhi-3
3. Board of Directors, I.T.D.C., Through Company Secretary, I.T.D.C., Scope Complex, Core-8, 6th Floor, Lodhi Road, New Delhi-110003. Respondents ( By Advocates Shri Ajay Kapur with Shri Dinesh Kumar and Shri H.S. Kohli ) Mr. L.K. Joshi, Vice Chairman (A) The Applicant herein had filed a Civil Writ Petition number 3024/2001 in the Delhi High Court, which was transferred to this Tribunal by order dated 30.03.2009, when the jurisdiction over the service matters of the employees of the Respondent, India Tourism Development Corporation (ITDC), was transferred to this Tribunal. We had heard the arguments in this matter on 3rd February 2011 and the matter was closed for judgement. However, for the reasons recorded in the order dated 11.02.2011 the OA was posted for rehearing. The above mentioned order has been reproduced below:
We had heard the arguments in this case on 03.02.2011 and closed it for judgement. The arguments on behalf of the Applicant were addressed mainly on the ground that the charge sheet was not sustainable because Shri Anil Bhandari, Chairman and Managing Director, ITDC, who issued the Memorandum of Charge could not have issued it because he was a party to the decision to appoint the consultant and award the contract. However, on going through the pleadings and records of the case, while writing the judgement, it came to notice that L R Pahwa, Vice President (Engineering Hotel), had also been proceeded against departmentally on almost identical charges as the Applicant and was acquitted, inter alia, on the ground that the decision to appoint the consultant and award the work was taken collectively and hence Shri L R Pahwa could not be held individually responsible for the decision to award the consultancy and the work. Although this argument was pot pressed during the submissions of the learned counsel for the Applicant, yet it has been brought out in the OA. It is an argument, which needs to be considered in the interest of justice.
2. The case needs to be re-heard on this account. List this case for re-hearing on 21.02.2011.
2. However, in spite of the above direction, no one appeared for the parties on 21.02.2011, when it was adjourned for 23.02.2011. No one has appeared for the parties even today. We are, therefore, passing this judgement on the basis of record placed before us and arguments already heard.
3. The Applicant is aggrieved by the order dated 14.02.2000 of the disciplinary authority imposing on him the punishment of reduction to two stages lower in the time scale of Rs. 12,000-375-16,500, with the stipulation that the penalty would be operative for a period of two years and that he would earn future increments thereafter.
4. The following charges were levelled against the Applicant in the charge sheet dated 12.09.1994:
ARTICLE-1 In the year 1985 the ITDC Management took a decision to provide MATV System in its hotels. Shri OP Maliviya, while working as DGM (E&M), Hotel Engineering Division in the year 1985-86 initiated a proposal of appointment of Consultant in pursuance of above decision. He neither recommended any pre-qualification nor took any initiative to invite applications from reputed Consultants which was necessary on account of non-existence of panel of consultants for the said work in ITDC. Shri Malviya had recommended M/s Consultants International, D-146, Okhla Industrial Area, Phase-1, New Delhi without verifying the details which is furnished by the Consultant himself.
Initially Consultant had demanded 3% consultancy fee of the work and later revised it to an amount of Rs. 1.95 lacs which included travelling expenses, boarding as well as lodging in ITDC Hotels at 50 % discount. Shri Malviya while recommending the extra amount of Rs. one lakh over & above of 3% fee on awarded cost of Rs.31.80 lakhs did not verify/work out the justification towards the expenses on account of TA/DA for the visits of the Consultant in order to ensure that Consultant had carried out the requisite inspection for the supervision of work of the outside Units. In the light of Shri Malviyas own remarks quote:
The consultancy of MATV System is a repeated type of work from consultancy point of view. Unquote:
M/s Consultants International thus was inducted arbitrarily and payment of consultancy charges were recommended without proper scrutiny and consideration of works of repeated nature. Shri O.P.Malviya, DGM (E&M) thus failed to maintain absolute integrity, efficiency and devotion to duty which is unbecoming of a public servant and violated the provisions contained in Rules 3.1 (i), 3.1 (ii), 3.1. (iii) of ITDC Conduct, Discipline and Appeal Rules, 1978.
ARTICLE-II Shri O.P. Malviya while functioning as DGM (E&M) in the Engineering Hotel Division of ITDC in the month of April 86 recommended the estimate for equipment of MATV system for NorthZone-1 costing to Rs.9.78 lakhs on 8.4.86 to the Competent Authority whereas the work was actually awarded at a cost of Rs.7.34 lakhs for installation. While recommending the estimate vide note dated 8.4.86 for various equipment, no proper market survey was conducted as the prices of equipments like modulator, convertor, VCR, Voltage Stabilizer etc. were incorporated in the estimate at higher rate though were actually purchased at much lower rate. Evidentally, the firms have also quoted very low rates in comparison to estimate for installation of MATV system in North Zone-1 thereby indicating that the estimated cost was on higher side and inflated.
Thus the estimated cost for equipment was inflated with ulterior motive to increase the cost of work and to give undue benefit to three firms which were ultimately awarded the work. Shri O.P.Malviya, DGM (E&M) by his above acts thus failed to maintain absolute integrity, efficiency and devotion to duty; committed dishonesty in connection with the business of the Corporation; acted in a manner prejudicial to good behaviour and interest of the Corporation which is unbecoming of a public servant and committed misconduct as contained in Rules 3.1. (i), 3.1 (ii), 3.1.(iii), 4.1 (iv), 4.11 (xxxvii) of the ITDC Conduct, Discipline and Appeal Rules, 1978.
ARTICLE-III Shri O P Malviya, DGM (E&M) while functioning in the Engineering Hotel Division during the year 1986-87 did not recommend the allotment of work for installation, Operation and maintenance of MATV system in North Zone-I to M/s Minny Enterprises which was found lowest with an amount of Rs.46.10 lakhs by the Consultant and he further opined the firm had quoted as per design in the tender document for Part A (installation) and as per requirement for part B (Operation & Maintenance). Though the Consultant vide his letter No.CI/NZ-1/86 dated 12.5.86 addressed to Shri O P Malviya, DGM (E&M) clearly stated that M/s Minny Enterprises was found suitable being the lowest from all angles after combining parts A & B of the tender document. Yet Shri O P Malviya had ignored the proposal and arbitrarily recommended to call all the parties for negotiation/clarification of rates vide his note dated 13.5.86. Shri Malviya also informed the firms that work will be divided to more than one party and negotiated with three firms i.e., M/s Minny Enterprises, M/s Vikas Industries and M/s Audio Vision to give them opportunity to pool up together and to increase the tender cost. The work was finally awarded at a total cost of Rs.75.08 lakhs to these three firms ignoring the lowest offer of Rs.46.10 lakhs and thereby causing the Corporation a pecuniary loss of Rs.28.98 lakhs.
Thus Shri O P Malviya, DGM (E&M) by his above acts failed to maintain absolute integrity, efficiency and devotion to duty; committed dishonesty in connection with the business of the Corporation; acted in a manner prejudicial to good behaviour and interest of the Corporation which is unbecoming of a public servant and committed misconduct as contained in Rules 3.1 (i), 3.1 (ii), 3.1. (iii), 4.1 (iv), 4.1. (xxxvii) of the ITDC Conduct, Discipline and Appeal Rules, 1978.
ARTICLE-IV Shri O P Malviya while functioning as DGM (E&M) during the year 1986-87 had shown preferential treatment in the selection of MATV equipment. There were 3 reputed manufacturers of MATV equipment i.e. M/s Nelco, M/s MCE and M/s Shyam Communications. M/s Nelco did not compete from the very beginning leaving firms M/s Shyam Communications and M/s MCE for consideration. Subsequently, M/s Shyam Communications was rejected on the ground that their equipment were not field prone although the Consultant had given him a Certificate of a reputed manufacturer in tender documents.
Surprisingly, M/s Shyam Communications who was rejected in North Zone-I was considered in all Zones (North Zone-II, East Zone, South Zone) of ITDC by the same Engineering Division. By throwing M/s Shyam Communications out of the Competition the cost of award was further escalated as is evident from the North Zone-II where M/s Shyam Communications lowest offer of Rs.29.66 lakhs was considered reasonable by the Committee. This ultimately compelled M/s Vikas Industry to bring down their offer to Rs. 29.22 lakhs from the earlier quoted offer of Rs. 35.15 lakhs. These facts clearly indicate that preferential treatment was shown in the selection of MATV equipment by Shri Malviya.
Shri O P Malviya, DGM (E&M) thus exhibited lack of integrity; efficiency and devotion to duty; committed dishonesty in connection with the business of the Corporation and showed conduct unbecoming of a public servant thereby committed misconducts under Rules 3.1 (i), 3.1 (ii), 3.1 (iii), 4.1 (iv) of the ITDC Conduct, Discipline and Appeal Rules, 1978. The charge sheet was issued by Shri Anil Bhandari, Chairman and Managing Director, ITDC, qua disciplinary authority.
5. In the contentions raised on behalf of the Applicant it was urged that when the decision to install MATV system in its hotels was taken by the Respondent- ITDC, a committee was constituted for this purpose by the Managing Director, which among others included Shri L R Pahwa, Vice President (VP) and Shri Anil Bhandari, VP. The latter was a party to all the decisions with regard to tenders and contract for the MATV deal. Minutes of the meeting dated 06.05.1985, Annex P-2, reveal that the Notice Inviting Tender (NIT) was approved in this meeting and Shri Anil Bhandari was a member of the committee. On 26.12.1985 the Applicant submitted a note, Annex P-3, in which five action points from a to e were mentioned, which, inter alia, included the following:
"d) in the tender documents, ITDC should indicate the design of the system for each and every hotel and for working out this is suitable consultant may be appointed immediately."
It was noted by the Applicant that the members of the committee might also see the note so that the decision mentioned from a to e could be implemented early. It was in conformity with the above decision that the Applicant appointed the consultant. A committee comprising the Applicant, Shri V. Natrajan, GM(F), Shri B.K. Dhingra, VP, Shri L.R. Pahwa, VP and Shri R.S. Jolly, Senior VP was formed and all of them jointly and collectively recommended M/S Consultant International for appointment as consultant for the aforesaid work. The proposal was approved by the VP (Finance) and thereafter by the Managing Director. In 1991 the Managing Director appointed a committee to inquire into the alleged irregularities committed in the appointment of the consultant. The report of the above said committee is placed at Annex P-6. The committee noted as follows:
2.The appointment of suitable MATV consultant was urgent since major investment for procuring sizeable number of colour TVs were to be made by MMD before 31 March 1986 as previously decided by MD. The ITDCs only known specialist consultant was M/s Telecommunication Consultants India Ltd (A Govt of India Enterprise). Their consultancy services had been availed for Samrat Hotel. Based on the discussions held on 17.12.85 by a Committee consisting of Sr.VP (H), VP (F), VP (HM&D), VP (EP), VP (EH), GM (F) and DGM (E&M), All India press advertisement had been released between 12 Jan and 20 Jan 86 inviting tenders for installation, operating and maintenance of MATV system in ITDC hotels. At this stage M/s TCIL were approached for obtaining their consultancy offer.
3. After having seen the above press advertisement, M/s Constant International, New Delhi approached ITDC for rendering consultancy services. Had there been such MATV consultants in the field, similar interest would have been expected but, none other than M/s Consultant International approached ITDC. In the past ITDC has been advertising in various news papers inviting professionals like Architects, Interior Designers, Consultants for engineering services etc. for empanelment with ITDC. ITDC did not receive any application as a MATV consultant in response to such advertisements.
4. With this position the High Power Committee consisting of Sr. VP (H), VP (F), VP (EH), GM(F) and DGM (E&M) concluded negotiations after discussions with M/s TCIL and M/s Consultant International and recommended appointing the latter as MATV consultant which was concurred by SVP (F) and approved by MD. The above approved/appointed consultant M/s Consultant International had required expertise and knowledge for undertaking MATV system-design which was more basic and essential than the list of his clientele. In its meeting held on 15.01.1994 the Board of ITDC decided to initiate departmental proceedings against the Applicant and Shri L R Pahwa, VP. Before initiating the departmental inquiry against the Applicant and Shri L R Pahwa, the Chairman and Managing Director of the Respondent-ITDC obtained legal advice in the matter from the ITDCs Legal Advisor (LA). The LA tendered the following advice:
2. The detailed perusal of the original files and documents make it abundantly clear that all decisions with regard to the appointment of consultant as well as Award of the contract have been taken collectively and were concurred by competent authority and almost at all stages they were seen/approved by senior officers of different divisions. Legally, in such matters, the responsibility of all decisions is joint and collective and any individual cannot be held liable for violation of rules/procedures. If the action is initiated against any individual/individuals, it may not be sustainable, the proposed action in the present case is as per ITDC conduct, discipline and Appeal Rules and as such does not involve interpretation of any law. However, it is admitted principle of law that in all disciplinary matters, the competent Disciplinary Authority has to apply its own mind and take its own decisions. If the disciplinary authority is guided/influenced by any outside authority, then the action can be legally challenged which may not stand the scrutiny of judicial principle and may be set aside if taken to the court of law. However, the Chairman-cum-Managing Director, ignoring the advice of the LA issued the charge sheet.
6. The learned counsel would further point out that an identical charge sheet, as issued to the Applicant, was also issued to Shri L R Pahwa on 15.12.1994 (Annex P-11). The charges against Shri LR Pahwa have been reproduced below:
Article I In the year 1985 the ITDC management took a decision to provide MATV System in its hotels. Sh L.R. Pahwa, VP (P&E) while functioning as VP (E-H) from 16-11-83 to 29-3-89 in the Engineering Division ITDC had appointed a Consultant in pursuance of above decision without laying down any prequalification for the appointment of Consultant, who was required to render technical expertise in the field of MATV system. The appointment of M/s Consultants International, D-145 Okhla Industrial Area, Phase I, New Delhi was made on the basis of information furnished by the Consultant himself and no verification was done so as to know his qualification, experience, job knowledge and potentiality to provide the MATV system in the ITDC Hotels. Sh Pahwa did not prefer to give advertisement for the selection of Consultant for the MATV work which was estimated at Rs. 65 lakhs. In the absence of publicity, the selection of Consultant was narrowed down to M/s Consultants International without any qualification. It clearly indicates that the consultant was appointed in an arbitrary fashion.
The consultant was paid Rs.1.95 lakhs towards his consultancy charges which includes travelling expenses, boarding and lodging in ITDC Hotels at 50% discount. No check was exercised on the inspection visits of the consultant which was absolutely necessary to ensure inspection and supervision of work of outside units.
Thus, M/s Consultants International was appointed arbitrarily and payment of consultancy charges were made without any proper scrutiny.
Sh. L.R. Pahwa, VP (P&E) thus failed to maintain absolute integrity, efficiency and devotion of duty which is unbecoming of a public servant and violated the provisions contained in discipline and Appeal Rules, 1978.
ARTICLE II Shri L.R. Pahwa, VP (P&E) while functioning as VP (E&H) in the year 1986-87 approved the estimate of Rs. 9.67 lakhs for equipment of MATV system for North Zone 1 whereas the work was actually awarded @ Rs.7.34 lakhs. The price quoted for various equipment indicates that no proper market survey was made before finalising the estimates, as the prices of equipments like modulators, convertors, VCRs, Voltage stabilisers were incorporated in estimates at higher rates but were actually purchased at a much lower rate. No estimate for operation and maintenance of MATV system was prepared to assess rates quoted by the firms. Sh L.R. Pahwa during negotiations with the firms M/s Minny Enterprises, M/s Vikas Industries and General Co.Pvt Ltd., M/s Audio Vision got assessed the rates for operation and maintenance of MATV system through the consultant at a cost of Rs. 80.38 lakhs whereas the lowest offer of M/s Minny Enterprises was for Rs. 39.93 lakhs. Evidentally, the estimated cost for operation and maintenance was on the higher side and had been inflated.
Thus the estimated cost for equipment, operation and maintenance was inflated with ulterior motive to increase the cost of the work and to give undue benefits to these firms which were ultimately awarded the work. Shri L.R.Pahwa, VP(P&E) by his above acts thus failed to maintain absolute integrity, efficiency and devotion to duty, committed dishonesty in connection with business of the Corporation, acted in a manner prejudicial to good behaviour and interest of the Corporation which is unbecoming of a public servant and committed mis conduct as contained in Rules 3.1 (i), 3.1 (ii), 3.1.(iii), 4.1 (iv), 4.1 (xxxvii) of the ITDC Conduct Discipline and Appeal Rules, 1978.
ARTICLE III Shri L.R. Pahwa, VP (P&E) while functioning as VP (E-H) in the year 1986-87 awarded the work of installation, operation and maintenance of MATV system in ITDC Hotels for Rs. 75.08 lakhs on 25.7.86 in North Zone I whereas as per ITDC Notification No. SEC: 182 dated 3-4-81 pertaining to Delegation of Power, he was empowered to award the work upto Rs. 25 lakhs only and as such had over-stepped authority beyond the delegation of his financial power. After Finance & Accounts Division objected to the award Shri LR Pahwa VP (E-H) later on 13.3.81 in order to cover up his misdeed and lapse, bifurcated the operation and maintenance cost proportionately to Rs. 19.67 lakhs including installation for a period of one year so as to bring the award amount under his financial power and thus ignored the terms and conditions of NIT which were for 5 years. The Finance and Accounts Division on 6-4-87 did not concur with the approval given by Sh Pahwa, VP (E-H) and reiterated their earlier stand. Ultimately on 20-5-87 Sh Pahwa, VP (E-H) after a lapse of one year processed the case and sent it to contract Committee to approve the award as per Delegation of Power. The Contract Committee at this stage had no other option but to ratify the rates of operation and maintenance as the Contractors had already executed the work. Thus the ratification of the rates by the Contract Committee was fait- accompli. In order to avoid any complication, ex-post-facto approval was given on 21-10-87 by Contract Committee. Thus, Sh L.R. Pahwa, VP (P&E) circumvents the authority of the Contract Committee with ulterior motive and thereby failed to maintain absolute integrity, efficiency and devotion to duty, committed dishonesty in connection with the business of the Corporation: acted in a manner prejudicial to good behaviour and interest of the Corporation which is unbecoming of a public servant and committed misconduct as contained in Rules 3.1.(i), 3.1. (ii), 3.1. (iii), 4.1 (xxxvii) of the ITDC Conduct, discipline and Appeal Rules, 1978.
ARTICLE-IV Sh. L.R. Pahwa, VP (P&E) while functioning as VP (E-H) during the year 1986-87 did not allot the work of installation, operation and maintenance of MATV system in ITDC hotels to M/s Minny Enterprises which was found lowest with an amount of Rs. 46.10 lakhs and suitable from all angles by the consultant as against other firms which had quoted much higher rates. Sh Pahwa made repeated negotiations with other firms and finally got the work awarded at a cost of Rs. 75.08 lakhs by splitting the work among 3 firms. Repeated negotiations were conducted with the intention to reach near the highest bid cost instead of remaining closer to the lowest bid cost. The decision of splitting of work among the 3 parties was neither mentioned in tender documents nor any administrative approval was taken prior to the tendering. The decision of the splitting of the work gave an opportunity to all the three bidders to pool up and increase the tender cost. As per norms and practice, negotiation are held to bring down the rates at par with the prevailing market rate including elimination of unsuitable and to the maximum of 5% to 10% higher to the justified cost is considered as acceptable. Sh Pahwa splitted and divided the work with ulterior motive which has caused Rs.28.98 lakhs loss to the Corporation.
Thus Sh L.R. Pahwa, VP (P&E) by his above acts failed to maintain absolute integrity, efficiency and devotion to duty, committed dishonesty in connection with the business of the Corporation: acted in a manner prejudicial to good behaviour and interest of the Corporation which is unbecoming of a public servant and committed misconduct as contained in Rules 3.1.(i), 3.1. (ii), 3.1. (iii), 4.1 (xxxvii) of the ITDC Conduct, Discipline and Appeal Rules, 1978.
ARTICLE-V Sh L.R. Pahwa, VP (P&E) while functioning as VP (E-H) during the year 1986-87 had shown preferential treatment in the selection of MATV equipment. There were 3 reputed manufacturers of MATV equipment i.e. M/s Nelco, M/s MCE and M/s Shyam Communication. M/s Nelco did not compete from the very beginning as such only 2 firms i.e. M/s Shyam Communications and M/s MCE remained in the field of selection. M/s Shyam Communications was rejected on the ground that their equipment were not field prone although the Consultant had given him a certificate of a reputed manufacturer.
Surprisingly M/s Shyam Communications who were rejected in North Zone I was considered in all Zones (North Zone-II), East Zone, South Zone) of ITDC by the same Engineering Division. By throwing M/s Shyam Communications out of the competition the cost of award was further escalated as is evident from the North Zone II where M/s Shyam Communications lowest offer of Rs. 29.66 lakhs was considered reasonable by the Committee. This ultimately compelled and brought down M/s Vikas Industries to submit their revised offer of Rs.29.22 lakhs from Rs.33.15 lakhs. These facts clearly indicate that preferential treatment was shown in the selection of MATV equipment.
Sh L.R.Pahwa, VP (P&E) thus exhibited lack of integrity, efficiency and devotion to duty, committed dishonesty in connection with the business of the Corporation: and showed conduct unbecoming of a public servant and committed misconduct as contained in Rules 3.1.(i), 3.1. (ii), 3.1. (iii), 4.1 (xxxvii) of the ITDC Conduct, discipline and Appeal Rules, 1978. The charged officer (Shri L.R. Pahwa) give a reply to the above mentioned charge sheet dated 15.12.1994, which is placed at Annex P-12. This was considered by the Board of Directors of Respondent-ITDC in a meeting held on 29.11.1995. Shri LR Pahwa was given a personal hearing by the Board of Directors. It is recorded in the minutes of the meeting that Shri LR Pahwa contended that all the decisions had been taken collectively for which he alone could not be blamed. The Board of Directors took the following decisions on the basis of the arguments of the charged officer as well as on the basis of the records:
Article-I Regarding arbitrary appointment of M/s Consultants International - Taking into account the fact that in 1985, the MATV system was entirely a new concept and not many consultants were available in the country to render advice on the system, the Board decided to drop the charge.
Article II- Relating to preparation of estimate for the equipment. While the equipment was estimated to cost Rs.9.78 lakhs, the work was actually awarded at a cost of Rs. 7.34 lakhs. The Board felt that one could understand the charge if the actual price was much higher than the estimated cost but not vice versa. In the instant case, the actual rates were lower against the original estimate.
Since no malafide could be attributed, the Board decided to drop the charge.
Article-1II- Pertaining to awarding the work beyond the delegation of power as the NIT was for operation and maintenance for 5 years. The Board considered the plea of Sh LR Pahwa that even though the rates had been firmed up for five years, the contract for installation and maintenance was awarded for one year and the contract was to be renewed every year by the individual hotels. On perusal of the relevant records, the Board concluded that there was some force in what Sh LR Pahwa was pleading. Further, considering the fact that the contract was finally ratified by the Contract Committee, no case against Sh LR Pahwa could be made out on that account and hence the Board decided to drop the charge.
Article IV- The lowest offer of M/s Minny Enterprises at Rs. 46.10 lakhs was ignored and the work was awarded at Rs.75.08 lakhs after repeated negotiations with all the three parties.
(i) On perusal of the records of the case, the Board found that there did not appear any malafide in initiating negotiation with all the parties. It was earlier a committees decision to bifurcate the contract zonewise; Sh LR Pahwa only carried out the decision of the committee further in negotiating with all the parties in the particular zone. Further, as indicated by Sh L R Pahwa, the offer by the party was incomplete & the consultant had also made the observation that the party had not indicated the type of equipment, etc., so ITDC should consider the award of work through further negotiation/clarification from acceptable parties. Further during negotiation all parties were informed about the minimum requirement of qualified engineers & technicians for each hotel. (ii) The manpower for proper maintenance in each hotel was worked out by the consultant based on which the parties revised their offers to bring them technically at par. However, it is observed that even when the offer of M/s Minny Enterprises, was the lowest and also fulfilled ITDCs requirement, the negotiations were not held with the lowest bidder only. Negotiations were held with three parties and the total value of work was awarded at a cost of Rs. 75.08 lakhs against the lowest offer of Rs.46.10 lakhs of M/s Minny Enterprises.
The Board felt that considering the fact that the contract was subsequently ratified by the Contract Committee, which was competent to take decision, no malafide could be imputed in initiating the negotiations. The Board considered that while there appear to be some procedural lapses, no malafide has been established against Sh LR Pahwa.
Article V- Relating to the rejection of M/s Shyam Communication in north zone on technical ground but considering them in other zones. The Board felt that no prejudice appears to be involved in rejecting M/s Shyam Communication after giving them an opportunity to revise their tender. They were considered in other zones as their offers were as per the prescribed tender documents. The Board, therefore, decided to drop the charge. The following decision was taken:
11. After taking into account all aspects of the matter, the comprehensive report of senior officers submitted in June, 1992, the fact that MATV was a comparatively new system and the collective decision of various concerned officers flowed out of management decision, without there being any apparent malafide on their part, the Board came to the tentative conclusion that the charges against Sh LR Pahwa may be dropped. However, he may be issued a cautionary letter for procedural lapses in regard to Article IV of the charge and for casting personal aspersions against officers of the Finance Division.
7. The inquiry officer in the inquiry against the Applicant held the first and the third Articles of charge to be proved against the Applicant and the second and the fourth Articles of charge to be not conclusively proved.
8. From the above overview of the facts, the learned counsel for the Applicant would contend that Shri Anil Bhandari, Chairman-cum-Managing Director, could not have issued the Memorandum of Charge against him because he was himself involved in the process of tendering and was party to the decisions which were taken by the committee. The second argument advanced by the learned counsel for the Applicant was that he had submitted a list of 14 witnesses for the defence, but the inquiry officer did not call anyone of them. He urged that it was not possible for the Applicant to call them as all of them were retired persons. These two arguments cannot be accepted because Shri Anil Bhandari was the member of the committee, which took decisions about the need to install the system and for that to appoint a consultant. However, it is seen from the records that he was not a party to the proposal for appointing the consultant or awarding the work. The appointment of the consultant was approved by the Chairman-cum-Managing Director, who was one Shri Rajan Jaitley at that time and not Shri Anil Bhandari. In so far as the attendance of the witnesses for the defence is concerned, it is the responsibility of the charged officer to produce his witnesses for the defence and it is not for the inquiry officer to summon them.
9. However, the averments of the Applicant in the OA that he alone could not have been punished for the decision taken collectively in the matter has considerable merit especially in view of the fact that Shri LR Pahwa, the then VP, was exonerated of the identical charges on the same ground. The Applicant has made this averment in paragraph 18 of the OA and the reply of the Respondents is that it is a matter of record. The Respondents have not denied that Shri LR Pahwa was exonerated only on the ground that the decision was taken collectively by all the members of the committee. It would, therefore, in our considered opinion, be most unjust, arbitrary and in violation of the principles of natural Justice to punish the Applicant for the charges of which the other charged officer has been exonerated. This is especially so because the Applicant has raised this issue in his representation against the Memorandum of Charge. The Applicant had, inter alia, raised the issues that not one person could be considered responsible for the decision taken collectively and that the charge sheet had been issued nine years after the incident. While the Board of Directors took into account the delay in case of Shri LR Pahwa, it was not taken into account in the case of the Applicant. In the case of the former the Board of Directors had observed that:
8. The Board took into consideration the sources of allegation, the time it has already taken for processing the case, the nature and type of work involved and the IInd comprehensive report of Senior Officials of ITDC. The argument that the decisions alleged to be illegal and irregular had been taken collectively and hence an individual could not be punished for those, was also accepted in case of Shri LR Pahwa. No such consideration was given to the Applicant, though he had raised this point repeatedly in his representation against the Memorandum of Charge. In reply to the paragraphs 15 to 18 of the OA, in which this ground has been taken up, the Respondents have merely stated that it is a matter of record.
10. The action of the Respondents in punishing the Applicant cannot be sustained. It would be an act of hostile discrimination in as much as the other officer accused of the identical charges had been exonerated on the ground that the decisions, which were the subject matter of the charges, had been taken collectively. As adverted above, the same advice was given by the LA also that the Applicant could not be held individually responsible for a collective decision. Regardless of that the Memorandum of Charge was issued against him. However, Shri LR Pahwa was allowed to go scot-free on the same reasoning. In OA number 204/2008, Sh. Parmatma Rai V. Union of India and others, decided on 10.02.2011 this Tribunal had held that an order of punishment would not be sustainable if another officer facing identical charges, in the same matter, was exonerated.
11. In the light of the above discussion, the OA is allowed and the impugned order dated 14.02.2000 is quashed and set aside. The Applicant would be eligible for all consequential benefits flowing from this direction as per the rules. There'll be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk