Central Administrative Tribunal - Delhi
C.B. Prasad S/O Sri Bachchoo Singh vs Union Of India on 13 December, 2013
Central Administrative Tribunal Principal Bench OA No.3800/2010 Reserved on: 10.09.2013 Pronounced on: 13.12.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) C.B. Prasad s/o Sri Bachchoo Singh, R/o House No. 18/25, Pakki Sarai, Aligarh 202 001 (UP) Applicant (By Advocate: Ms. Avni Singh) Versus 1. Union of India Through Union Minister of Power, New Delhi. 2. The Chairman, Governing Council, NPTI & Secretary to Govt. of India, Ministry of Power, Shram Shakti Bhavan, Rafi Marg, New Delhi. 3. The Director General, Disciplinary Authority, NPTI Complex, Sector-33, Faridabad 121 003. Respondents (By Advocate: Mr. M.M.Sudan) O R D E R
By Dr. B.K. Sinha, Member (A) The instant Original Application is directed against the impugned order dated 26.02.2010 whereby the Chairman, Governing Council, National Power Training Institute (hereinafter referred to NPTI) & Secretary to the Government of India, Ministry of Power have disallowed the appeal preferred against the order dated 27.08.2009 of the Director General/Disciplinary Authority, NPTI whereby a penalty of removal from service was imposed upon the applicant.
2. The case of the applicant, in brief, is that he is an upright conscientious and technically competent officer who has served the respondent-organization for the last 16 years or so. The respondent-NPTI is an autonomous body under the Ministry of Power, Government of India established to provide training and human resource development in the core power sector and allied energy sector. In June 2008, the applicant received an anonymous letter from one Vinay Sharma a politically oriented social worker alleging acts of corruption by NPTI officials in recruitment of Engineers for Bihar State Electricity Board and also challenging the authority of NPTI to conduct appointments. On receipt of this complaint, the applicant duly forwarded the same to his higher authorities on 26.06.2008 including the Director General, NPTI and the Secretary, Ministry of Power, Government of Bihar. On 22.07.2008, the respondent sought clarification from the applicant for having forwarded the letter to the Secretary, Ministry of Power and to provide supporting documents substantiating the complaint. The same was clarified by the applicant on 22.08.2008 with a request to get the facts investigated by the Vigilance Wing of some other organization. The applicant further assured the respondents that he would provide the necessary proof in support of his allegations. On 10.09.2008, the applicant informed the Director and the CVO, NPTI that he had lost his suitcase containing valuable official documents including the documents supporting his allegations. However, on 04.11.2008, the applicant was served with a Memorandum proposing to hold an enquiry against him in response to which the applicant submitted his show cause on 29.01.2009 requesting, inter alia, that the enquiry be conducted by officials of the Government of India and not by the officials of NPTI. The said request was turned down. The applicant claims that on 16.02.2009 he sought time to appoint a defence assistant but he was denied the same vide order dated 26.02.2009. It is the case of the applicant that his request for change of enquiry officer was also turned down and the same was never acceded to and the enquiry was continued with bias and malice against the applicant. On 17.07.2009, the enquiry officer submitted his report, which was furnished to the applicant. The latter submitted his detailed submissions on 14.08.2009. On 27.08.2009, the applicant was served with an order of removal from service against which the applicant preferred an appeal which was decided vide the impugned order dated 26.02.2010.
3. The applicant has adopted the following grounds in support of his Application:-
The respondents had not acceded to his request for taking the services of defence assistant ignoring his right to have a proper defence assistant. In this regard, the applicant has relied upon the decision of the Honble High Court of Delhi in the case of B.P. Sinha versus Union of India [153 (2008) DLT 15] and of Honble Supreme Court in Khem Chand versus Union of India & Others [AIR 1958 (SC) 300].
The applicant has alleged a strong bias against the respondents authorities on account of his protesting against the malfeasance on part of his superior officers leading to violation of his right of natural justice.
The applicant has further alleged lack of application of mind on part of the respondents authorities.
The applicant submits that in forwarding the complaints to different authorities, he did nothing wrong as it was his inalienable right granted to him under the statute to promote the organization and to secure more business a right which has been granted to every employee of the respondent-organization. The applicant further submits that being a conscientious officer, he has always opposed doing certain acts by the officers of the respondent-organization which is ridden with corruption. He further contends that had he not forwarded the complaints received by him to the higher authorities, he would have failed in his primary duties to the organization he serves. The applicant has strongly asserted that there is nothing wrong about what he has done and even the allegations against him did not constitute misconduct for which he could have been dismissed.
The IIM, Bengalore, which is one of the reputed Management Institute, was commissioned to enquire into the working of the respondent-organization i.e. NPTI and had found a large number of charges substantiated.
The applicant further submits that it was on his complaint the Honble High Court of Patna held the respondent-organization guilty of large scale mal-practices. He had also filed a complaint against the malfeasance in the organization to the CVC which had taken cognizance of the same and got enquiry conducted by the CVO of the outside organization.
4. The respondents have filed their counter affidavit and have strongly denied the averments of the Original Application. The respondents submit that the scope of judicial scrutiny is confined to only whether there has been some violation of statute; whether there has been some procedural lapse which sought to vitiate the proceedings; or whether it has been hit by malafide. The point relating to the applicant acting as Ombudsman and being instrumental in the judgment of the Honble Patna High Court, the CVC report and the report of IIM have not been part of the pleadings, therefore, these cannot be raised at this late stage. The respondents in their counter reply have further submitted that the applicant was holding a responsible post of Assistant Director in the faculty of the respondent-organization NPTI. It is the case of the respondents that the respondent organization had been assigned the job of recruitment of Engineers for the BSEB. A complaint was received by the applicant from one Vinay Sharma, General Secretary, Lok Janshakti Party, Maharashtra State reciting therein that certain irregularities were being committed in the above recruitment process. The applicant, without having verified the veracity of the allegations contained in the above complaint and even without disclosing to his superior authority, sent an e-mail repeating the allegations to the Secretary, Energy Department, Govt. of Bihar for taking appropriate action in that regard. However, the applicant was asked to confirm the charges leveled by the said Vinay Sharma and also to state his relationship, if any, with him. The applicant was further asked vide communication dated 20.08.2008 as to why he had chosen to send the e-mail directly to the Secretary and not to Director General, NPTI. The applicant replied that he had acted in public interest and did not acknowledge any relationship with said Vinay Sharma. He had also asserted that he had also sent a copy of the letter to the Director General, NPTI and other concerned Authorities but he would not be responsible for their loss or misplacement while in transit.
5. Thereafter, a Charge Memo was served upon the applicant with two charges namely that the had sent the e-mail on 26.06.2008 to the Secretary, BSEB making allegations against his employer without having verified the same or the authenticity of the author and he had also filed complaint against senior officers but failed to substantiate the same when called upon to do so. The applicant was also given the choice of engaging a defence assistant as early as on 14.11.2009 but he did not avail of this opportunity. He submitted an explanation on 29.01.2009 wherein he simply stated that he had acted in public interest. The offer of availing of defence assistant was again repeated on 15.02.2009. The applicant was also provided a list of 32 documents that he had relied upon and he was allowed to examine the same. During the course of the proceedings, the applicant was given the option to appear in the witness box and get himself examined as a witness, which he declined. The respondents affirm that the applicant walked out from the proceedings on 27.02.2009 stating that he would not attend the enquiry any more. He further refused to sign the daily order sheet on 16.02.2009 and the same had been sent to him by registered A.D. Post. The enquiry officer submitted his report on 07.07.2009, a copy of which was served upon the applicant to enable him to make his representation. Initially the applicant requested for extension of time but subsequently submitted his reply on 14.08.2009 which was examined and found to be misleading and untenable in law. He was also given a personal hearing by the Director General, NPTI/Disciplinary Authority on 21.07.2009 but he requested for postponement of the same. He did not avail the opportunity of personal hearing despite the fact that he remained present in the Campus at that time. The disciplinary authority having considered the representation of the applicant concluded that the Article of charges framed against the applicant were proved beyond doubt and vide order dated 27.08.2009 imposed a major penalty of removal from service which was not to be a disqualification for future employment under the Government. The respondents further submit that the applicant filed an appeal to the Chairman, Governing Council, NPTI against the order aforesaid. The appellate authority vide its order dated 26.02.2010, after having considered the relevant records, held that the charges against the applicant were fully substantiated and the punishment awarded to him was adequate and just. The learned counsel for the respondents has submitted that there are absolutely no procedural irregularities attending the conduct of the departmental proceedings. Rather it would be correct to say that rules of natural justice have been respected by affording full opportunity to the applicant to present his case. It was the applicant, on the other hand, who did not avail of such opportunity. The learned counsel for the respondents denied the allegation that the Honble Patna High Court had passed any strictures against the respondent-organization for alleged malpractices in the recruitment process of Assistant Engineers. Their Lordships observation, on the other hand, was related to the conduct of Computer Literacy Test which had not been carried out by the respondent-organization but by other private organization. The respondents have further submitted that the IIM Bangalore was commissioned to carry out a Management Study by Ministry of power, Government of India wherein they have drawn the attention of the Government on a number of issues and such studies are being conducted periodically with the main objective of improving the efficiency and working of the organization. This fact would have been brought into defence which the applicant has not elected to do and instead is making a virtue out of this lapse at this stage. There was nothing to prevent the applicant to do so but having not done so, he is precluded from adopting it as a point at this juncture.
6. With regard to proportionality of the punishment, the respondents have relied upon the decision in the matter of Union of India versus Parma Nand [1989 (2) SCC 177]. The learned counsel for the respondents has submitted that in the past 16 years of his service, the applicant has been reprimanded on a number of times and has also been punished earlier for similar types of offences with loss of four increments and has not been promoted so far. The instant case is the result of series of offences committed in earlier point of time. Moreover, he is gainfully employed as Principal of a school and also submitted documentary proof in the form of downloads from the website of the institution. The learned counsel for the respondents strongly argued that the conduct of the applicant has been downright and harmful to the respondent-organization and the applicant has not succeeded in proving any of the grounds. The application, therefore, deserves to be dismissed.
7. We have carefully considered the pleadings of the rival parties along with the documents submitted by them, and have also heard patiently the oral submissions made by their respective counsels. On the basis of the above, we find that the following issues emerge for our consideration:-
Whether there have been any procedural latches or violation of statute in the departmental proceedings conducted which would serve to vitiate the same?
Whether the applicant had acted in public interest in sending the email dated 26.06.2009 to the Secretary, Bihar State Electricity Board leavelling serious allegations against the employees of the respondent organization?
Whether the punishment awarded to the applicant is disproportionate to the enormity of the offences and shocks the conscience of the court?
What relief, if any, could be granted to the applicant?
8. In so far as the first of the issues is concerned, the arguments of the respective counsels have already been noted. We would now confine ourselves merely to answering the issue. There are two charges leveled against the applicant. First charge stated that he had sent e-mail message on 26.06.2008 giving an incorrect picture of respondent-organization on the basis of a complaint received by him from one Vinay Sharma. He did not inform his superior officers and, when asked, failed to provide documentary evidence. The second charge as stated is that he made serious complaints against his own superior officers apart from the officers from Ministry of Power but failed to substantiate the same when asked to do so. Thereby he has acted in a manner unbecoming of an officer of the NPTI. The applicant had leveled allegations in the OA that the Department is biased against him; the proceedings should have been conducted by some outside officer; and that he was not allowed to engage a defence assistant.
9. The issue regarding mala fide is taken up first. Though the applicant has alleged charge of bias amounting to mala fide against the Director General, NPTI, but he has not impleaded him personally as a party. The term malice at law has been defined by the Honble Supreme Court in the matter of Ravi Yashwant Bhoir versus District Collector, Raigarh & Others [2012 (4) SCC 407], which reads as under:-
47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745). The Honble Supreme Court has further held in the case of Mukesh Kumar Agrawal versus State of U.P. & Others [2009 (13) SCC 693] that where there is a case involving malice in law which, if established, may lead to an inference that the statutory authorities have acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved.
10. We agree with the argument of the learned counsel for the respondents that the three allegations regarding passing of strictures by the Honble Patna High Court in the matter of Prabhat Kumar versus Chairman, Bibar State Electricity Board & Others [CWJC No. 16819 of 2008 decided on 22.12.2008], the indictment of the organization and IIM Bangalore, and about the report of the CVC against the alleged irregularities in the process of recruitment of Assistant Engineers have not been pleaded. Rather, these facts have been brought to notice during the course of arguments and, therefore, they do not constitute the part of pleadings. However, since the matter has been raised and rebutted by the respondents, it becomes imperative that the findings be placed on record.
11. In so far as the indictment of Honble Patna High Court is concerned, the judgment of the Honble Court in the matter of Prabhat Kumar versus Chairman, Bibar State Electricity Board & Others (supra) has been produced. In the said case, the petitioner had challenged the selection process particularly the Computer Literacy Test and the Honble Court has held as under:-
7. There is yet another aspect of the matter. On the own showing of the respondents, the Computer Literacy Test was defective and some of the questions were out of syllabus. Paragraph 9 of the counter affidavit is reproduced hereinbelow:
That the Computer Literacy Test was conducted on 26.10.2009 in which some of the candidates could not secure minimum qualifying marks and a number of candidates complained that the Software loaded in the computer on which the online computer literacy test was conducted was defective as well as the questions asked were out of syllabus i.e. M.S., Office. However, submission of the respondents is that the Computer Literacy Test had been conducted by some outside agency and it was not the NPTI which had conducted the test. As against this, the applicant submits that it was the task that had been assigned to the respondent organization on a turn-key basis. This was again denied by the respondents. The Honble Patna High Court in the case of Prabhat Kumar versus Chairman, Bibar State Electricity Board & Others (supra) had clearly held that it was not possible to separate wheat from the chaff and, therefore, the respondent authorities were directed to conduct second Computer Literacy Test. It would be inappropriate for this Tribunal to go into the validity of the computer test particularly when the Honble High Court of Patna has applied its judicial mind to it. It does stand to reason that when a turn-key contract had been given to the organization it cannot disown the supervisional lapse in respect to its agent engaged to conduct the computer literacy test. This part of the charge would definitely stick. At the same time since the matter has not been pleaded, it does not form part of the pleadings and, therefore, it would be inappropriate to hold the respondents responsible for this.
12. We have also perused the Report of the IIM Bangalore in respect of the study commissioned by the Ministry of Power, a copy of which has been furnished to the respondent-organization by the Ministry of Power vide its communication dated 10.03.2008 for comments. This study had been commissioned with the following objectives:-
2.1 OBJECTIVES OF THE STUDY To examine the current status of NPTI as a national Apex body for training To assess the usefulness of various training programmes being offered by NPTI to meet the medium term needs of the Indian Power Sector.
To study the appropriateness of its fee structure and suggest way forward towards making it a financially viable organization on a sustainable basis.
To study and assess NPTIs efforts and accomplishments in the area of training related research activities undertaken by it in the last 26 years.
To analyze the effectiveness of NPTI interaction and partnership with industry and utilities and suggest ways to improve the same.
To analyze the impediments if any NPTI has faced with particular reference to :
Organizational structure and process Suitability of its skill set, knowledge capital and information resources.
Its strength or otherwise in networking with other training bodies in the country The possible approaches to address the problem areas, in the time ahead.
To assess and recommend steps and measures to make NPTI one of the leading training institutes in the power sector benchmarked to the international leaders in the field.
To comment on whether corporatisation of the NPTI would enhance its effectiveness in carrying out the role assigned to it. It is to be noted from above that the purpose of the report was particularly to bring about the organizational structure and functional improvement within various training programmes, fee structure, effectiveness interaction and partnership and to improve the organizational structure as also upgradation of skills and networking etc. The report by its nature and objective is not an enquiry into the acts of individual corruption. At its end, the report also makes recommendations in two parts relating to Plan-A and Plan-B. Whereas Plan-A suggests in respect of particular training programmes, Plan-B suggests merely about organizational models and restructuring. The report has positive things to say about the organization too, like it is on its way to financial self-sufficiency on review. It has also made centre-wise analysis but finds several drawbacks in its training programmes due to internal conflicts relating to training versus education and teaching versus coordination. The report observes:-
As a result, NPTI faculty are not able to leave a mark since building of expertise is sacrificed for coordination and revenue generation. One of the PD says Faculty has been reduced to arrangers of tea/coffee by the former DGs policies. The Coordination can be very well delegated to the staff, with some incentives. But this is not done, and the faculty is unable to get anything done by the staff. The report also goes into the efficiency and effectiveness of performance indicators and holds as under:-
This lead to their steeply rising graphs on MOU parameters of number of trainees, number of trainee weeks and percentage of own revenue in total expenditure and enabled them to nearly reach financial self-sufficiency. But on the flip side, NPTI failed to create brand value. There was very little which they could call their own. In general, the guest faculty who were practitioners in the field had superior ratings. If they were not good they could be discontinued unlike the internal faculty. So perversely NPTI took only the guest faculty feedback in most cases and internal faculty feedback was not done in all Institutes. On the Pricing of Programmes, the report holds as under:-
The NPTI has devalued itself and its faculty by Very low pricing Not showcasing their faculty (see their PMI brochure where all faculty profiles with photo are given) No training and upgradations of faculty Very poor infrastructure, both in class room, hostel and faculty offices.
Not having access to plant operations automatically.
More money and also image can come only from short duration programmes aimed at senior executive, with inelastic demand, and to addresses this market NPTI has to overcome the shortcomings mentioned above. When senior officials are satisfied with the NPTI they will send more juniors for training.
Each Institute may be given autonomy in pricing, instead of following a uniform pricing by the Head Office. However, we do not think that this is a very fair proposition to hold that this report is a vigilance enquiry into the acts and omissions of the respondent-organization. Such studies are being regularly conducted in most Ministries and Departments of the Government but there is nothing on papers to suggest that it forms an indictment of the organization/individual employee of the organization on charge of corruption and/or where there are chances relating to improvement, the applicant has been responsible for the same.
13. As regards the CVC enquiry, it is true that there was a complaint by the applicant relating to appointment of one Anil Kumar, who was not eligible but he managed to get the same fraudulently. There were also complaints against some other individuals including one M. Arunachalam, Principal Director, NPTI, who purchased a laptop without floating any tender and not filing of an FIR in the case of an accident with the vehicle of the organization. This was enquired into by an external agency after registration of vigilance case namely RC No.11003. The report states:-
Even before Shri Prasad had complained to CVC, he had sent various letters to the offices of Director General, NPTI, Joint Director (South), CBI, Addl. Secretary, MOP, Secretary, MOP, Prime Minister of India, etc. lodging above-referred allegations among others requesting a speedy and fair enquiry. Besides the applicant, there were other complainants, as is seen from the paragraph above, who were duly examined. The charges further included:-
(i) That when he was posted at NPTI, Durgapur during the year 1998, his junior officers were nominated for short-term foreign training ahead of him, even though he had successfully completed and coordinated maximum number of training programmes and earned huge amount of revenue to the organization.
(ii) That during the year 2003 when he was posted at NTI, Nagpur, he notices that substandard furniture and official equipments were being procured. However, the same got burnt in a fire accident, which was termed as due to short circuit in an enquiry conducted by Shri Arunachalam. Thus, the matter was closed without investigation.
(iii) That during his posting at NPTI, Durgapur in the year 2003, one Ms. S.K. Nag was appointed as Asstt. Director (Faculty) violating the eligibility criteria for the post. Similarly, one Ms. Jharnadhara was appointed as Typist in Hindi Section even though she had failed to qualify the qualifying test.
(iv) That a disciplinary inquiry was initiated against him at NPTI, Durgapur, wherein Shri Mahesh Kumar, the Inquiry Officer was given incentives violating the official norms and his alary was fixed under Band P-4 referring to a very old official order vide No.26/31/Admn/NPTI/HQ/5793-800 dated 30.03.2002, which is not even applicable to NPTI officials. It is to be noticed from the enquiry report that many of the allegations leveled by the applicant were not found substantiated. Some specimen of which are as follows:-
(e) With regard to the allegation of NTPI (SR) not preferring insurance claim for the repair of the official Matador vehicle that got damaged in a road accident on 08.03.2008 while being driven by a drunken driver, and being repaired at the NPTIs cost, Sh. Satyanarayana in his statement has stated that the subject vehicle had an accident with a bus belonging to NLC. NTPI (SR) tried to lodge an FIR with the local police, but the police refused to do so. When the insurance company was contacted for lodging an insurance claim, the insurance company rejected the claim stating that the driver was intoxicated during the accident. Thus, NPTI (SR) was forced to get the vehicle repaired through its own means. However, disciplinary proceedings for imposition were conducted against the errant driver, and a major penalty was imposed on him. Thus, it is seen that NPTI (SR) had got the vehicle repaired at its own cost only at the last resort after failing to get an insurance claim for the accidental damages.
(f) With regard to the allegation that in the year 2006, for running the official canteen, Mr. Arunachalam had chose the highest bidder and selected him by manipulating the documents for the year 2007 and also gave him extension in year 2008, Shri Satyanarayana had in his statement stated that the canteen contract was initially awarded after normal tendering process. However, after the specific request of the sponsoring companies to enhance the quality of the food for their candidates, a higher separate rate list for food items was prepared for sponsored candidates. Further, these sponsoring companies had agreed that they would send the extra amount towards the extra charges for the food would be directly sent to the NTPI (SR) to be paid to the contractor. Thus (SR) had no role to play in this regard.
(g) With regard to the allegations of purchase of laptop(s) at inflated rates, the investigation has revealed that the indent for the procurement of 03 (three) laptops was initiated by Shri Arunachalam, Principal Director on 21.11.2006, a Purchase committee comprising of Shri T.R. Nagrajan, Director, Shri S. Vishwanathan, Director and Shri J. Jayasamraj, Dy. Director was constituted to select a model form the rate contract placed by DGS&D and freeze on the specifications. The committee finalized the specifications, and put the proposal for enquiry of the rates for deciding the purchase.
Subsequently, an offer from M/s. Surya Peripherals was received, which quoted Rs.73,200/- for a laptop with higher configurations. However, the Principal Director reduced the number of indented laptops from 03 to 01 (one) only. Resultantly, only one laptop was purchased. Thus, the required procedures of checking for the laptop on DGS&D rate contract, obtaining quotations and subsequent processing were followed by NPTI(SR).
With regard to the specific allegation of procurement of laptop at double the market value of such laptops, it is noted that the value of the procured laptop cannot be compared with a market quotation directly, as the two are of different brands (Dell vs. vis-`-vis HP make). Further, it is seen that the rates for the procured laptop was taken from the DGS&D rate contract. The following of the rate contract in the procurement of the laptop also seems appropriate in light of the advise of Ministry of Finance, GoI vide its OM ref.no.8(4)-E.II(A)/98 dated 17.12.1998 which states that It is, therefore, advised that Ministries/Departments should follow the open tender system for purchase of personal computers till a rate contract for computers is concluded by DGS&D. Thereafter, computers could be purchased on rate contract basis.
(h) With regard to the allegation of nomination of officers junior to Sh. Prasad for short-term foreign training without giving merit to the contribution of sh. Prasad and ahead of him, the allegation has not been delved into as the issue pertains to the administrative decision making of NPTI, wherein apart from the individual merit, many other factors play a role in such decision making. For example, the long-term expertise building of the faculty, the length of service available of the senior faculty, the disciplinary case pending against eligible officials, etc., are some of the important consideration that are to be weighed in such decision.
(i) The allegation of procurement of substandard furniture and official equipments by NPTI, Nagpur in the year 2003, which were subsequently destroyed in the office fire, supposedly due to short-circuit, the allegation has not been investigated. The reasons for the same are that in his statement itself, Sh. Prasad has said that an enquiry report was prepared by Sh. Arunachalam into the fire incident, which concluded that the fire was a result of short-circuit in the office. The report was duly submitted to NPTI management, which accepted the findings of the enquiry. Hence, if the enquiry report had been any deficiency in addressing any important issue(s), the same would have brought out by the NPTI management itself. Secondly, as a considerable period (8 years) has elapsed from the incident date, it would now be not possible to investigate the causes of the fire, and contest the findings of the enquiry report in the absence of any valuable evidence, which cold be gathered from site inspection immediately after the incident, which is crucial to decide whether the actual cause of fire.
(j) With regard to the allegations of Shri Mahesh Kumar, the Inquiry Officer in the disciplinary inquiry initiated against Sh. Prasad being given incentives violating the official norms and his salary being fixed under Bank P-4 referring to a very old official order that is not even applicable to NPTI officials, the matter has been taken up with CVO, NPTI vide letter dated 07.01.2011. In response, it has been informed that the Sh. Mahesh Kumar, along with all the other Directors of NPTI who were promoted to the Directors grade against regular vacancies and after observing the prescribed selection procedure were placed in the functional grade of Rs.14300-18300 by following an analogy pertaining to a DoPTs direction to CEA officials. Vide the said direction, DoPT through its OM dated 06.06.2000 had directed for placing all Directors of CEA who had completed 13 years of service in Group A in the functional grade of Rs.14300-18300/-. The report, however, found some of the charges established either fully or partly and recommended some action to be taken:-
9. Recommendation for action In view of the conclusions as above, if approved by CVO, NTPC, the investigation report may please be sent to CVC for its information and advice, though no report in this regard has been desired by Commission. Further, a copy of the report may also be forwarded to CVO, NPTI for concluding the investigation pertaining to irregularities in appointment of various persons violating stipulated conditions, and other suitable actions on other conclusions above, as deemed fit. From the above, it would appear that while some of the allegations leveled by the group of complainants appear to have been substantiated but a large number of other allegations, as seen above, were not found substantiated.
14. In so far as the procedural lapse is concerned, we find that the applicant had been repeatedly offered the services of the defence assistant, which he chose not to exercise for reasons best known to him. He had also been given opportunity of examining the papers and participating in the enquiry. We take full cognizance of the fact that he had refused to sign the enquiry papers and the same had to be sent to him by registered post. We also find that significant parts of the defence that the applicant had taken in the post enquiry stage could have been taken during the course of enquiry. We further find that his attitude with the enquiry has been lackadaisical at his part. A departmental enquiry is the forum where the charged employee stands face-to-face with the witnesses and the enquiry officer. This being the formative stage of the case, the charged employee is expected to raise all issues relevant there. There is nothing on record before us to suggest that the enquiry is hit by any procedural lapse. As such, we decide this issue against the applicant.
15. In so far as the second issue is concerned, the other facts having been stated, it has to be clearly understood that the respondent-organization is a Consultancy-cum-Training Organization. It is a National level Apex Body set up by the Ministry of Power, Government of India to function as a national organization for training in field of operation and maintenance of power stations and all other aspects of power, viz. transmission, sub-transmission and distribution, initiating and coordinating training programmes in power sector in the country and to establish and run training institutes for Engineers, Operators, Technicians and other personnel of Power Sector. Under the Indian Electricity Rules, 52 weeks of training is mandatory for personnel engaged in operation and maintenance of plants greater than 100 MW. The respondent-organization is a national level apex body, which caters to this training need. It also undertakes consultancy for the different State Electricity Boards and other organizations. It earns its bread and butter through this process. No organization will offer training courses or consultancy to an institution whose reputation has been tarnished. Thus, the duty is cast upon every employee to maintain the image of the organization. We do agree with the argument of the applicant that it is the prime duty of every employee including himself who is a senior officer in the organization, to protect the interest of the organization. However, at the same time, the duty is also cast upon every employee to be careful and cautious in his conduct so that the image of the organization is not tarnished. We take note of the fact that the applicant acted on a complaint received from one Vinay Sharma who claims to be the General Secretary of Lok Janshakti Party of Maharashtra. Admittedly, he is a political person and, therefore, allegations leveled by him needed to be verified before a senior officer like the applicant had acted further in the matter. We further take note of the fact that though complaint was received by the applicant on 21.01.2008 but he had forwarded the same in June, 2008. Thus, there was sufficient opportunity on part of the applicant to have verified the allegations contained in the complaint and would have arrived at a finding and/or taken the superior officers into confidence. Instead, the applicant chose to do nothing but for sending the e-mail dated 26.06.2008 to the Secretary, Bihar State Electricity Board alleging as under:-
Kindly refer to the subject and do needful after going through micro level enquiry. As NPTI Officers are not worthy to their honest services, so recruitment by NPTI may be a matter of micro level extensive corruption. Kindly do needful in public interest.
16. We further take note of the fact that the applicant had claimed to have sent the letter to the superior officers but could not provide the documentary proof. When the applicant was called to explain and substantiate the allegations, he informed on 06.08.2008 that all documents were misplaced and not traceable for the time being but vide letter dated 10.09.2008 he informed that the documents were stolen on 21.05.2008 when he was on his way to Neyveli. This was even before he had written the letter. The applicant has failed to produce any documentary evidence to support his allegation.
17. Since we have already alluded to the conduct of the applicant while dealing with the issue no.1, we need not go into the same at this juncture. However, we further take note of the fact that the applicant was appointed in September, 1995 and the gradings given to him have been ranged from Very Poor to Very Good. Most of the gradings have been either Average or Poor as indicated in the following Table:-
SUMMARY OF ACR RECORD OF APPLICANT-CB PRASAD Year Grading given by Reporting Officer Grading given by Reviewing Officer Grading given by Accepting Authority Remarks, if any.
27.9.95 to 31.3.96 V. Good 1.4.96 to 22.12.96 Good 23.12.96 to 31.3.97 Good Good Good 01.04.97 to 31.3.98 V. Good Average/ Adverse 1.4.98 to 27.7.98 V. Good Average/ Adverse Not reviewed Adverse remarks stand 11.8.98 to 31.3.99 Good Good Good 1.4.99 to 31.3.2000 Average Average Not reviewed 1.4.2000 to 31.3.2001 Good Good Good 1.4.2001 to 31.3.2002 Good Good Average 1.4.2002 to 31.3.2003 Good Average Good 1.4.2003 to 15.6.2003 Average Average Average 16.6.2003 to 31.3.2004 Good Average Average 1.4.2004 to 31.8.2004 Average Poor Poor 1.9.2004 to 31.3.2005 Good Poor Poor 1.4.2005 to 31.3.2006 Good Good Good 1.4.2006 to 31.1.2007 Good Good Good 1.4.2007 to 31.3.2008 Good Good/ Adverse Good Adverse remarks stand 1.4.2008 to 31.8.2008 Good Average/ Adverse Average Adverse remarks stand 1.9.2008 to 31.3.2009 Good Average Average
18. The above facts bring the applicant in poor light and it is more than established that he had acted in filing a complaint against his own organization to the Secretary of the Organization which had awarded consultancy to the latter without having enquired into and substantiated the same. His duty was to inform his own superior officers regarding the complaint received but he kept the said complaint for four months without doing so. Therefore, the plea that he had acted in public interest immediately on receipt of the complaint in the interest of the organization is not sustained rather he acted contrary to the same. We fail to understand how pubic interest is served where the respondent organization admittedly one of the premier of its kind were to have its contract terminated on the basis of unsubstantiated complaints. We further find that the authenticity of the complainant has not been got established by the applicant. We do not see as to how the applicant has acted upon the complaint despite the fact that he had ample opportunity to verify the same. It, therefore, cannot be called impulsive action.
19. In respect of third issue, we are compelled to take a note of the past conduct relating to the applicant. It has been brought to our notice that the applicant was punished vide order dated 08.12.2008 after having conducted the proceedings under Rule 14 of the CCS (CCA) Rules, 1965 for serious acts of omission and commission as Programme Director for one year post course in Thermal Power Plant Engineering (VIII Batch) for serious lapses. The order of punishment reads as follows:-
Reducing his pay by four (4) stages in the pay scale of Rs.8000-13500 (pre-revised)/Rs.15600-39100 (revised) for a period of four years and the charged officer will not earn increment of pay during the period of this reduction. After expiry of the period the pay will be restored to the level at which he would have drawn but for his penalty subject to his good behaviour during the penalty period. No arrears for the reduction of pay and stoppage of increments will be paid under any circumstances. Still we would have taken a lenient view on the proportionality of the punishment as to the gravity of the offence, however, it has been submitted by the respondents that the applicant has since joined as Principal of DAV Institute of Engineering & Technology and in support of this act, the photograph along with the message of the applicant has been produced. However, there is no disclosure to this effect in the pleadings but it is not object to by the applicant that he is gainfully employed. Further, the punishment awarded to the applicant does not shock our conscious as the conduct of the applicant has been reprehensive and he had been punished on earlier occasion as well. Therefore, this issue is also decided against the applicant.
20. In view of the afore discussions, we find that in none of the issues raised, the applicant appears to be getting a reprieve. To the contrary, we find that he has taken the role of self-appointed Ombudsman. He, however, appears to have forgotten that an Ombudsman has to lead by setting an example by his conduct but we do not find the applicant having set such an example. Per contra, the applicant has been negligent. Hence, we have no reason to interfere with the punishment awarded to the applicant. The instant Original Application is, therefore, dismissed devoid of any merit. There shall be no order as to costs.
(Dr. B. K. Sinha) (Syed Rafat Alam)
Member (A) Chairman
/naresh/