Central Information Commission
Umesh Kumar Khandelwal vs Northern Railway on 5 April, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File No.: CIC/NRAIL/A/2023/608533
Umesh Kumar Khandelwal .....अपीलकर्ाग /Appellant
VERSUS
बनाम
PIO,
Northern Railway, HQ Office,
Baroda House, New Delhi -110001 ....प्रनर्वािीगण /Respondent
Date of Hearing : 01-04-2024
Date of Decision : 05-04-2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 14-12-2022
CPIO replied on : 09-01-2023
First appeal filed on : 23-01-2023
First Appellate Authority's order : 08-02-2023
2nd Appeal/Complaint dated : 14-02-2023
Information sought:
The Appellant filed an RTI application dated 14-12-2022 seeking the following information:
"Please take reference of GeM Bid No. GEM/2022/B/ 2352339 floated by SMM/G, Northern Railway, Baroda House, New Delhi which converted to Page 1 of 7 Contract No. GEMC-511687711861392 dated 03/10/2022 & IREPS Coverage Order No. 14220919206319 dated 04/10/2022 were issued respectively. Further, modification advice number 007373 dated 04/10/2022 was issued changing specification of packing from ISI marked container to non-ISI marked container in coverage order & kept the mother order GEMC-511687711861392 dated 03/10/2022 intact.
It is requested to take cognizance of GFR Rules 2017 Rule 225 (xiv) page 65 which is like this: -
(a) The terms of a contract, including the scope and specification once entered into, should not be materially varied.
(b) Wherever material variation in any of the terms or conditions in a contract becomes unavoidable, the financial and other effects involved should be examined and recorded and specific approval of the authority competent to approve the revised financial and other commitments obtained, before varying the conditions.
(c) All such changes should be in the form of an amendment to the contract duly signed by all parties to the contract.
Please provide information under the Right to Information Act 2005:
1. Kindly provide a copy of the request letter based on which modification advice number 007373 dated 04/10/2022 was issued.
2. Kindly provide the name and designation of authority who approved such deviation in the form of Modification Advice in accordance with GFR Rules 2017 Rule 225(xiv) at page 65.
3. Kindly provide a copy of approval duly attested as defined in (2) above.
4. Please provide the law / rules under which the modification advice number 007373 dated 04/10/2022 was issued which supersedes the GFR Rules
5. Kindly provide confirmation that the necessary procedure as per GFR Rules 2017 were followed in issuance of post contract modification to specifications through modification advice number Page 2 of 7 007373 dated 04/10/2022 in secondary order i.e., coverage order and kept mother order intact.
6. Kindly provide a copy of specific clause of GFR Rules 2017 empowering issuance of modification advice no. 007373 dated 04/10/2022 in secondary order without modifying mother order i.e., GEMC contract. Please provide a duly certified copy of such GFR Rules 2017.
7. Kindly provide confirmation that the recipient consignees had testing facilities as per IS:6312/1994 type 2A class L at their end to check the specifications of the containers as per post the modification advice dated 04/10/22.
8. Please provide a law on legal status of IREPS coverage order in front of GeM order, please specify which order is a prime order GeM Order or IREPS Coverage order. Are you empowered to make direct payment without involving GeM portal? please provide us concerning law / Acts with specific clauses.
9. Please provide definition under law on financial frauds in contracts."
The CPIO furnished a point-wise reply to the Appellant on 09-01-2023 stating as under:
"Point No. 1, 2 & 3:
The request has been made on administrative grounds. SMM/G Arpit Gupta is the competent authority.
Point No. 4, 5 & 6:
The modification has been issued as per terms & conditions of contract and provisions given by Ministry of Railway Board Govt of India.
Point No. 7:
Does not pertain to this office.
Point No. 8 & 9:
It is not an information pertaining to this office."Page 3 of 7
Being dissatisfied, the appellant filed a First Appeal dated 23-01-2023. The FAA vide its order dated 08-02-2023, replied pointwise as under:
"Point No. 1, 2 & 3:
A copy of Modification advice No. 007373 dated 22.10.2022 duly approved by CA is attached.
Point No. 4 & 5:
The modification has been issued as per terms & conditions of contract and provisions given by Ministry of Railway Board Govt of India.
Point No. 6:
A secondary order i.e., Covering PO is issued in favor of Gem contract. There is no provision for issuing amendments in GeM, the same is issued through amendments in covering POs of Railways.
Point No. 7:
Does not pertain to this office.
Point No. 8 & 9:
It is not an information pertaining to this office."
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Along with his son Shri Anurag Khandelwal present through video- conference.
Respondent: Shri Manoj Kumar, Asst. Material Manager-cum-APIO and Shri Kuldeep Bist, Office Suptd. present in person.
Written submissions of the Respondent are taken on record.
The Appellant narrated the genesis of this matter being a post-award modification of tender conditions made in the contract under reference for which two firms i.e. his firm namely M/s. Harihar Sharan & Sons and M/s. Siddhi Vinayak Enterprises were awarded the work. He pleaded that the Page 4 of 7 Railway Authorities modified/changed the specification of packing from ISI marked container to non-ISI marked container in coverage order by keeping the mother order intact and that too after execution of final contract. He further expressed his dissatisfaction with the CPIO's reply against each point of RTI Application as under -
• Point No. 1: The request letter regarding modification advice furnished by the Respondent pertains to another firm i.e. Siddhi Vinayak Enterprises and not to his firm for which modification advice No. 007373 dated 04-10-2022 was issued.
• Point No. 2, 3: The details of Competent Authority as per relevant GFR Rules, 2017 has not been provided.
• Point No. 4,5, 6, 8 and 9: Details of Relevant Clauses/Rules of GFR Rules, 2017 are yet to be furnished by the CPIO.
• Point No. 7: The CPIO has failed to explain as to whether the recipient consignees had testing facilities as per IS:6312/1994 type 2A class L at their end to check the specifications of the containers as per the post- modification advice dated 04-10-2022.
Further, Appellant pleaded the inaction of the Respondent Public Authority in making amendments/modifications in the specifications mentioned to the contract terms, in violation to the GFR Rules, 2017.
Respondent at the outset denied that allegations levelled by the Appellant and explained that the modifications/amendments were made in the specifications as per the terms and conditions of contract prescribed by the Ministry of Railways, GoI. They are not governed by GFR Rules, 2017 in toto. For Point No. 7 of RTI Application, he emphasized that such testing facility are based on the IRS terms of contract. In this regard, the Appellant may have a look on the IRS condition of contracts which are already available in public domain.
Respondent at the end, volunteered to forward a copy of entire records of subject contract running into around 200 pages to the Appellant and also agreed to afford inspection of relevant records to the Appellant.
Page 5 of 7Appellant interjected to contend that the copy of note sheet given by the Respondent against Point No. 1 of RTI Application are not certified ones. He also insisted that at least relevant clauses of IRS (Indian Railway Services) condition of contracts should be intimated by the CPIO against Points No. 5 and 6 of the RTI Application. To this end, the Respondent consented to resend a certified copy of note sheets and to inform the relevant clauses/ Rules against the said points to the Appellant.
Decision:
The Commission, after adverting to the facts and circumstances of the case, hearing both the parties at length and perusal of the records notes that the core contention raised by the Appellant revolves around the issue of amendment/modifications made in the specifications to the contract under reference after award in complete violation to the GFR Rules, 2017. To this, the Respondent clarified that the modifications were made as per the IRS terms and conditions of the contract which can be easily accessed from the weblink. Here, the Commission cannot lose sight of the fact that the issue raised in the matter appears to be a vigilance matter owing to post-award modification of tender conditions, which cannot be adjudicated under the mandate of RTI Act.
Nonetheless, the Commission finds no infirmity in the reply furnished by the Respondent except for Point No. 1, 5 and 6 of the RTI Application to which the Appellant restricted his relief during the hearing.
However, in furtherance of hearing proceedings, the Respondents' offer to send a copy of entire records of subject contract running into around 200 pages to the Appellant and also agreed to afford inspection of relevant records to the Appellant, the Respondent is directed to share the same in addition to resending a certified copy of note-sheets as given earlier against Point No. 1 of the RTI Application and to intimate the relevant clauses of IRS terms of contract against Point No. 5 and 6 of the RTI Application to the Appellant, within 4 weeks from the date of receipt of this order.
First Appellate Authority to ensure compliance of the directions.Page 6 of 7
The appeal is disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Date 05-04-2024 Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181827 Date Page 7 of 7 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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