Central Administrative Tribunal - Delhi
Shri Sanjay Jain vs Union Of India Through on 2 November, 2010
Central Administrative Tribunal Principal Bench O.A. No.2947/2009 New Delhi, this the 2nd day of November, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Shri Sanjay Jain S/o Shri Brij Mohan Lal Jain R/o 46/4, Engineers Enclave, Phase-III, GMS Road, Dehradun. Applicant By Advocate : Shri A.K. Bhardwaj for Ms. Jagriti Singh. Versus Union of India through: 1. The Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi. 2. The Director General (W), CPWD, Nirman Bhawan, New Delhi. ..Respondents By Advocate : Shri D.S. Mahendru. O R D E R By Honble Mrs. Meera Chhibber, Member (J) :
Applicant has challenged charge-sheet dated 18.3.2009 (page 33) on the following grounds:-
(i) Inordinate and unexplained delay in initiating the enquiry;
(ii) Discrimination; and
(iii) No misconduct has been committed by the applicant.
2. It is submitted by the applicant that the allegation against him pertains to the period 2.11.2003 when it is stated that the applicant, Shri S.K. Jain had issued a Press Notice for inviting PQ applications and had extended the date for opening of PQ applications for working of Sardar Swarn Singh National Institute for Renewable Energy at Kapurthala Road, Jalandhar when the then Executive Engineer (Electrical) Shri V.K. Singhal was on leave with effect from 2.11.2003 whereas the charge sheet has been issued on 18.3.2009, i.e., after a period of more than 5.1/2 years. Moreover, there is no justifiable explanation as to why charge sheet has been issued after such a long time, therefore, charge sheet is liable to be quashed on this ground alone.
3. It is further submitted by the counsel for the applicant that the Press Notice for PQ applications was issued on 6.11.2003 but on opening of the applications, the same was scrutinized by Executive Engineer, Superintending Engineer and finally by Chief Engineer on 11.12.2003. Since none of the above said officers questioned the veracity of the documents enclosed along with the pre-qualification application, the applicant cannot be said to have committed any misconduct as all these documents were verified by the Executive Engineer, Superintending Engineer and finally accepted by the Chief Engineer but no action has been taken against the other officers, therefore, applicant alone cannot be blamed for not examining the veracity of work experience certificate submitted by M/s Jyoti Electrical.
4. In any case applicant had issued the Press Notice on 6.11.2003 under the instructions and at the instance of Executive Engineer, who was on leave, therefore, it cannot be termed as a misconduct. In order to substantiate his averment, he has placed reliance on the judgment dated 3.2.209 given by the Tribunal in the case of Shri Rahul Gupta in OA No. 1756/2008 with OA No.1757/2008 which is stated to have been upheld by the Honble High Court of Delhi in its judgment dated 9.4.2009.
5. Respondents on the other hand have stated that they were not even aware of the involvement of the applicant in this case. FIR dated 30.3.2005 was received from the CBI in the office of the respondents on 5.4.2005 but even at that stage names of suspected accused were mentioned as un-known officers of CPWD. It was during investigation name of Shri V.K. Singhal Executive Engineer (E) and Shri S.K. Jain, i.e., the applicant was indicated by the CBI through their letter on 14.12.2006. Accordingly, bio-data of above named officers was called from their respective controlling officers. Simultaneously CBI authorities were requested to send the documents and draft charge-sheet as investigations were carried out by them. The documents were received from CBI, Chandigarh on 16.8.2007. More documents were received from the Superintending Engineer (E), Chandigarh Central Electrical Circle on 28.9.2007 and other formalities were completed.
6. The interim investigation report was prepared based on the lapses indicated on the part of Shri V.K. Singhal and applicant. It was felt appropriate to seek their explanation. Accordingly, show cause notice was issued to them on 3.9.2008 and 4.9.2008 respectively. In the meantime applicant was transferred from Chandigarh to Dehradun Central Electrical Division, therefore, show cause notice dated 29.9.2008 was again sent to the applicant on 3.10.2008. He gave his reply which was received by the respondents on 15.10.2008. After considering his explanation, the investigation report dated 20.11.2008 was sent to the CVC on 2.12.2008 for seeking their first stage advice. The CVC gave its advice vide OM dated 14.1.2009 for initiating major penalty charge sheet against Shri V.K. Singhal and the applicant. Accordingly, the charge sheet was issued to the applicant on 18.3.2009. They have further explained that there was confusion in the name of the applicant as CBI had mentioned Shri S.K. Jain, AE (E), but on verification from the service record, it established that the name of applicant was Sanjay Jain. Accordingly, corrigendum of the memo dated 18.3.209 was issued on 29.7.2009 correcting the name of the applicant. They have thus stated that in view of the facts as explained above, the charge sheet cannot be stated to be hit by inordinate and unexplained delay.
7. On the question of discrimination, they have stated that after investigations, the lapse could be ascertained on the part of the concerned Executive Engineer (E) and the applicant only because the entire building of award of work to the firm which was not eligible was based on misconduct of attestation for four certificates by the applicant. Thus the fake/false foundation was laid down by the applicant. This authority is only given to the gazetted officers of the Government of India and State Governments to check the forgery and to stop and misuse of fake documents. Sole purpose of attestation will be defeated, if documents are attested without any verification of facts and figures of documents.
8. They have further stated applicant is not co-operating in the enquiry even though no stay was granted by the Tribunal, on the preliminary hearing of enquiry, i.e., 17.11.2009, applicant did not participate and requested the IO to defer the enquiry. It is in applicants own interest to get the enquiry completed at the earliest and defend himself before the IO.
9. It is submitted by the counsel for the respondents that Honble Supreme Court has repeatedly held that court should not interfere at the stage of charge sheet, therefore, the OA may be dismissed.
10. We have heard both the counsel and perused the pleadings as well.
11. From the facts, as narrated above, it is clear that till 22.1.2007 the respondents were not even aware about the names of officers of CPWD who were involved in this case. CBI gave the names of un-known officers vide their letter dated 22.1.2007. Thereafter, necessary steps were taken by the respondents to collect the information and the necessary documents. After the documents were available with them, respondents called explanation of the applicant and Executive Engineer, Shri V.K. Singhal by issuing memo dated 5.9.2008. The memo of applicant was received back undelivered on 15.9.2008 as in the meantime he was transferred to Dehradun. Accordingly fresh memo dated 30.9.2008 was sent to the applicant through Executive Engineer (E), Dehradun. He received it on 3.10.2008 and gave his reply which was received in the office of the respondents on 11.10.2008. At that stage, the matter was sent to CVC for seeking their Ist stage advice and taking approval of the competent authority. The CVC advised to initiate major penalty charge sheet against the applicant and the Executive Engineer. Accordingly, charge sheet was issued to the applicant on 18.3.2009. These facts clearly show that there is no inordinate delay in issuing the charge sheet. On the contrary the delay has been explained.
12. On the question of inordinate and unexplained delay Honble Supreme Court has held as under in State of Andhra Pradesh Vs. N. Radhakishan reported in JT 1998 (3) SC 123:-
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
From above it is clear that in each case court has to see whether delay has been explained or not. In case delay is explained then disciplinary proceedings should be allowed to take its course. In the instant case we have already returned a finding that the delay has been explained by the respondents, therefore, it cannot be stated that the charge sheet suffers from inordinate delay. This contention is, therefore, rejected.
13. The charges levelled against the applicant are as follows:-
Shri S.K. Jain, Assistant Engineer (Elect.) while holding charge of Assistant Engineer (Planning) Elect., Chandigarh Central Electrical Division, CPWD, during Oct. 2003 to Jan.2004 committed the following lapses in respect of work of Sardar Swarn Singh National Institute of Renewable Energy (SSNIERE) at Kapurthala Road, Jalandhar (Pdg. & Installation of Sub station equipments and DG set).
ARTICLE-I That Shri S.K. Jain, Assistant Engineer (Planning) Elect. without written instructions or post confirmation of recording of verbal/telephonic instructions by the then Executive Engineer (Elect.) Shri V.K. Singhal while he was on leave w.e.f. 2.11.2003, signed and issued of press notice for inviting of PQ applications and extension of date for opening of PQ applications, for the work of Sardar Swarn Singh National Institute of Renewable Energy (SSNIERE) at Kapurthala Road, Jalandhar (Pdg. & Installation of S/station equipments and DG set) has unauthorisely issued Press Notice for invitation of PQ applications and extended date of opening of PQ applications from 17.11.2003 to 18.11.2003.
ARTICLE-II That Shri S.K. Jain, Assistant Engineer (Planning) Elect. has processed recommendations for pre qualifications of above said work and put up to the then Executive Engineer (Elect.) Shri V.K. Singhal without proposing about verification of veracity of the work experience certificates submitted along with PQ applications. Work experience certificates submitted by M/s Jyoti Electricals along with his PQ application were forged and fake. M/s Jyoti Electricals got pre qualified to participate in process of tendering for the said work. The work was awarded to M/s Jyoti Electrical at negotiated amount of Rs.1,39,70,660/- on the basis of fake and forged experience certificates. Thus Shri S.K. Jain, Assistant Engineer (Planning) Elect. has failed to propose to the then Executive Engineer about provisions of para 17.4.2 of CPWD Works Manual 2003, which emphasise ascertaining about veracity of contractors expertise and experience in the specialized field concerned.
ARTICLE-III That Shri S.K. Jain, Assistant Engineer (Planning) Elect. while processing the press notice for the said work and receipt of P.Q. applications also attested the experience certificates submitted by M/s Jyoti Electricals along with P.Q. applications without careful and intelligently examining the originals, which were fake and forged.
Thus the said, Shri S.K. Jain, Assistant Engineer (Planning) Elect. by his above acts failed to maintain absolute integrity, exhibited lack of devotion to duty thereby contravening Rules 3(1)(i), 3(1)(ii) of CCS (Conduct) Rules-1964. Counsel for the applicant submitted he has not committed any misconduct because he had issued the Press Notice at the instance of Executive Engineer. If applicant feels that he had issued the Press Notice on instructions from the Executive Engineer or he has any other defence against the charges levelled against them, he can always take that defence before the IO because the very object of holding the enquiry is to give an opportunity to the delinquent to defend himself by leading the evidence. The Tribunal cannot look into the correctness of the charges at this stage because it has repeatedly been held by the Honble Supreme Court that courts should not interfere at the stage of charge sheet and matter should be allowed to be processed by the competent authority after the enquiry is complete.
14. At this juncture, it would be relevant to refer to the judgment of Honble Supreme Court in the case of Union of India and others vs Upendra Singh reported in 1994 (3) SCC 357, it was held as under:
In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into.
15. In the case of Union of India and Another vs Ashok Kacker reported in 1995 Supp (1) SCC 180, it was held as under:
The respondent has full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf. This was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet. The appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon.
16. In the case of District Forest Officer vs R. Rajamanickam and another reported in 2000 (9) SCC 284, the facts were that the appellant after making an inquiry served separate charge sheets on the respondents asking them to file an explanation in respect of the charges levelled against them. The matter was inquired into by the appellant by examining the witnesses in support of the charges and also witnesses examined by the delinquent officer in their defence. Before any final order could be passed, the respondents approached the Tamil Nadu Administrative Tribunal, Chennai against issuance of charge sheet against them and inquiry initiated in pursuance thereof. The Tribunal after entertaining those original applications, by an interim order restrained the appellant from passing any final order consequent upon the inquiry conducted by the appellant. The said orders were challenged in the Honble Supreme Court.
17. The contention of the appellants was that the Tribunal did the exercise of finding out the correctness or otherwise of the charges levelled against the respondents. The Tribunal in fact re-evaluated and reassessed the evidence and came to the conclusion that the charges levelled against the respondents are not proved which is not permissible. It was held by Honble Supreme Court as follows:-
The Tribunal was not justified under law to interfere with the correctness of the charges levelled against the delinquent officer.
18. The Tribunals orders was set aside and liberty was given to the department to pass final orders. It is thus settled position that we cannot go into the correctness of the charges at this stage. Applicant would have the opportunity to defend himself before the I.O., therefore, this contention is also rejected.
19. As far as the question of discrimination is concerned, respondents have explained that after investigation, it revealed that it was the applicant and the Executive Engineer who were responsible, therefore, both of them have been taken up in the disciplinary case. The senior officers had proceeded in the case on the basis of the documents which were initiated by the applicant and the executive engineer, therefore, it cannot be stated that the applicant has been discriminated against.
20. Counsel for the applicant had placed reliance on the judgment dated 3.2.2009 given in Rahul Guptas case. Perusal of the same shows that in that case the other two officers were also indicted by the CVC, namely, Mr. H.S. Chahal, GM (PU) and Mr. S.C. Saluja, CGM (Technical), who were senior to the applicant and who took the decisions in the case but were not proceeded against and were allowed to go scot-free, whereas applicant alone was taken up for disciplinary case. It was in those circumstances held by the Tribunal that the applicant could not have been discriminated against. In the instant case CBI had indicted only these 2 officers, therefore, that case is distinguishable. It cannot be stated that this is a covered matter because the other matter was decided in the given facts of that case. According to us that judgment would not advance the case of the applicant. Since applicant has challenged the charge sheet, this OA is not maintainable at this stage.
21. It is in applicants own interest to defend himself before the I.O. by co-operating. We can only direct that in case applicant co-operates with the IO, the enquiry should be completed within a period of 3 months from the date of receipt of a copy of this order by holding day to day hearing so that the matter is not prolonged any further.
22. With the above direction, OA stands disposed of. No order as to costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) Rakesh