Central Administrative Tribunal - Delhi
Residential Address vs Union Of India on 21 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA 70/2006 New Delhi this the 21st day of February, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) J.M. Sharma, S/o late Shri C.R. Sharma, Retd. Assistant Engineer Irrigation& Food Control Department Government of N.C.T. of Delhi. Residential Address:- J.M. Sharma House No. E-186, East of Kailash, New Delhi-110 065. Applicant. (By Advocate: Shri G.D. Bhandari) Versus Union of India, through 1. The Secretary, Ministry of Home Affairs, Government of India, New Delhi. 2. The Lt.Governor, Govt. of N.C.T. of Delhi. Raj Niwas, Delhi. 3. The Chief Secretary, Govt. of N.C.T of Delhi. Delhi Sachivalaya, I.P.Estate New Delhi. 4. The Secretary Irrigation & Food Control Department Govt.of N.C.T. of Delhi. 5/9 Under Hill Road, Delhi. Respondents. (By Advocate: Mrs. P.K. Gupta) O R D E R (ORAL)
Shri G. George Paracken:
The applicant was charge-sheeted under Rule 14 of the CCS (CCA) Rules, 1965 vide Memorandum dated 08.06.1998. The charge against him was that he, while working as Assistant Engineer, Supplementary Drainage Division No. V, Delhi Administration, Govt. of NCT of Delhi during the period 27.06.1991 to 24.02.1992, was incharge of execution of the construction of Bridge at RD.30825 mt on the supplementary drain (near Ranhola Village) and the cracks have developed in the bridge and that one span of the bridge has collapsed. Therefore, he failed to maintain devotion to duty and absolute integrity as also to take suitable steps to ensure devotion to duty of Government servants for the time being under his control and authority. Thus, he has violated Rule 3 of the CCS (Conduct) Rules, 1964. Similar charge-sheets with minor variations have been issued to S/Shri R.M.P. Swamy, R.C. Sood, S.R. Vasudeva, G.S. Arora, N.K. Sharma, R.N. Sharma, Farooqui, Upender Agnidev and S.C. Gupta. Shri S.C. Gupta had filed O.A. 452/2002 and Shri Upender Agnidev had filed OA 453/2002 before this Tribunal. Both those O.As were partly allowed by a common order dated 06.04.2004 setting aside the impugned disciplinary authoritys order as well as that of the appellate authority with further direction to reinstate the applicants in service forthwith. However, by the aforesaid directions, the respondents were not precluded from proceeding again against them, if so advised, from the stage of supplying the copy of CVC report since this Tribunal held that non-supply of CVC report vitiates the proceedings in the light of the decision by the Apex Court in the case of State Bank of India Vs. D.C. Aggarwal (JT 1992 (6) SC 673).
2. The respondents had filed the Review Application Nos. 214/2004 in OA 453/2002 and 215/2005 in OA 452/2002. Both those Review Applications were dismissed on 10.08.2004.
3. Aggrieved by the aforesaid orders of this Tribunal dated 06.04.2004 and 10.08.2004, the respondents have approached the Honble High Court of Delhi by Civil Writ Petition Nos. 18387/2004 & 18395/2004 but the High Court vide its order dated 29.09.2010 remanded both the O.As to this Tribunal on the ground that The Tribunal has dealt with only two pleas, i.e., the two technical pleas and the rest of them have not been considered.
4. During the pendency of the aforesaid writ petitions, this Tribunal has considered the present O.A and decided to adjourn it sine die until the aforesaid writ petitions are disposed of by the Honble High Court.
5. Later on, both the aforesaid O.As 452/2002 (supra) and 453/2002 (supra) have been considered in their entirety and this Tribunal vide its order dated 04.07.2011 allowed them by a detailed order, the relevant part of the said order reads as under:
14. We have heard the learned counsel for the applicant and learned counsel for respondents and have perused the entire record. A perusal of the earlier Order of this Tribunal dated 06.04.2004 in both these O.As would reveal that they were partly allowed and the respondents were directed to reinstate the applicants in service for the following two reasons:-
(1) Non supply of the CVC report.
(2) Non-compliance of the mandatory provisions contained in Rule 14 (18) of the CCS (CCA) Rules, 1965.
However, they were given liberty to proceed further in the disciplinary proceedings against the applicants from the stage of supplying a copy of CVC report, if they were so advised,
15. The High Court considered the aforesaid Order in the respective Writ Petitions filed by the Respondents but they have remanded both the O.As to this Tribunal vide its judgment dated 29.09.2010 for fresh adjudication on all contentions urged and pleas raised in the Original Application especially those in Paras 4.12, 4.16, 5.1, 5.4 and 5.5 which are reproduced elsewhere in this order. The High Court further observed in the said judgment that this Tribunal in its Order has dealt with only the aforesaid two technical pleas but ignored pleas of substance and held, if the applicants could show that the bridge collapsed due to a faulty design and in respect of the evidence sought to be brought on record that they permitted sub-standard material to be used, could establish that Ground 5.4 urged was correct, they would have successfully demonstrated that the charge of permitting sub-standard material to be used was sustained ignoring the said pleas and deficiency in the evidence brought on record. Again the High Court observed that if the applicants can make good the contentions urged by them in para 4.12 and para 4.16 and the Grounds urged in para 5.1, 5.4 and 5.5 of the Grounds, that would mean that the entire inquiry report stands vitiated and it would be a case of denial of fair opportunity of defence as also a case of the inquiry officer ignoring material evidence. The High Court has, therefore, directed this Tribunal to adjudicate upon those issues which strike at the root of the matter.
16. As far as non-compliance of Rule 14 (18) of the CCS (CCA) Rules, 1965 is concerned, the High Court observed that it has not been established whether the non-compliance of the aforesaid provision has prejudiced the defence considering the pleas in paras 4.12, 4.16 and grounds urged in paras 5.1, 5.4 and 5.5. In this regard, the High Court has relied upon the judgment of the Apex Court in Sunil Kumar Banerjee Vs. State of West Bengal & Ors. (1980 (3) SCC 304) as against the Apex Courts decision in Moni Shankar Vs. Union of India & Anr. (2008 (3) SCC 484) and Ministry of Finance & Anr. Vs. S.B. Ramesh (1998 (3) SCC 227).
17. As far as the issue of CVC advice not being disclosed to the applicants is concerned, according to the High Court, this Tribunal has noted the decisions of the Supreme Court in State Bank of India Vs. D.C. Aggarwal, JT 1992 (6) SC 673 but have not factored the fact that the advise of the CVC was to dismiss the applicants from service but the disciplinary authority has levied a lesser penalty.
18. The contention of the Applicant in Paras 4.12 and 5.1 is that he sought for copies of 34 additional documents which have been permitted by the Inquiry Officer but the respondents have given him only some of those documents and the crucial documents for proving his defence were not given. He has also stated that some of he crucial documents were supplied to him on 1,3,5 and 7 of April, 1998 whereas the regular hearing commenced already on 01.04.1998 and completed on 08.04.1998 thereby denying him a reasonable opportunity to defend his case. He has listed 16 crucial documents which have been asked for but not furnished to him. According to him, the non-supply of those documents has caused serous prejudice to him. The respondents have replied that the aforesaid request of the Applicant for additional documents was only to divert the attention from the core issues. However, they have stated that copies of all listed documents and 25 additional documents sought by the Applicant have been given to him. They have denied his allegation that those documents have been given to him in piecemeal. They have also stated that the following documents were not relevant and, therefore, they were not given to him:-
(i) Work file maintained at Circle Level & Sub-Divisional Level.
(ii) Complete file maintained at S.S.W. Office.
(iii) Duties and responsibilities.
(iv) Notification issued by the L.G.
19. The contention of the Applicant in Para 4.16 is that the disciplinary authority has imposed the penalty of compulsory retirement upon him without considering the depositions of the defence witnesses. In their reply, the respondents have denied that allegation.
20. In Para 5.4, the Applicant has stated that the case against him was one of no evidence as none of the PWs have proved the charge. The respondents denied the said contention and stated that there was sufficient proof on record to prove the charge.
21. His contention in Para 5.5 is that it was proved that the design submitted by M/s Project Consultants vide their drawing have serious deficiencies which ultimately resulted in the collapse of the Bridge. However, the respondents have submitted that though there were serious defects in the design and the persons concerned have been punished by the disciplinary authority, ultimately the collapse of the bridge was due to poor quality of construction and the Applicant was responsible for the same.
22. As observed by the Honble High Court, the plea of substance raised by the applicants which strikes at the root of the matter is that the cracks have been developed in the bridge and one of its span was collapsed entirely due to the serious deficiencies in the designs submitted by M/s. Project Consultants and not because of any lack of devotion to duty or integrity on their part. In this regard, it is seen that when the bridge has collapsed and payment to the contractor Sh. Khem Chand was stopped by the Govt. of NCT of Delhi, he approached the Arbitrator. The plea of the Govt. of NCT of Delhi before the Arbitrator was that the cause of the collapse of the bridge was the use of substandard material by the contractor. The copy of the Award of the learned Arbitrator dated 19.02.1999 made available by the learned counsel for the applicants during the course of argument is quite relevant in this context. The contention of the Govt. of NCT of Delhi before the learned Arbitrator was that the failure of the structure was on account of poor workmanship and use of substandard material by the contractor but the contention of contractor was that the structure has failed on account of inadequate and defective design prepared and drawings supplied by the respondents. The learned Arbitrator came to the conclusion that the evidence led indicates failure of the structure on account of inadequate designs and drawings. The relevant part of the said Award is as under:-
6.4 The Respondent contends that the failure of the structure is on account of poor workmanship and use of sub-standard material by the Claimant. Whereas the Claimant contends that the structure has failed on account of inadequate and defective designs prepared and drawings supplied by the Respondent.
7.1 The evidence led by the Respondent does not support his contention that the Claimant had executed the super-structure work with unsound workmanship and sub-standard material as a result of which one span has collapsed.
7.2 The work was executed by the Claimant under supervision of the Respondents engineers. Also the work as executed had been accepted and paid for without any reservation by the Respondent, at the relevant time.
7.3 On the other hand evidence led indicates failure of the structure on account of inadequate designs and drawings. This is also borne out from the site inspection as the collapsed span has broken at the location of about < to 3/8 of the span from the end where both shear as well as flexural reinforcements in the main girders were inadequate. Lorgitudinal reinforcement in the main girders was mistakenly curtailed in the drawing at 3/8 of the span instead of < of the span from the end and as such the flexural reinforcement actually shown in the drawings at these sections was inadequate.
23. The Govt. of NCT of Delhi filed objections against the aforesaid Award before the Honble High Court of Delhi vide OMP No.174/1999 and the High Court vide its decision dated 29.04.2003 dismissed them and upheld the aforesaid findings of the Arbitrator. The relevant part of the said decision is as under:-
13. In the case on hand, the arbitrator noticed that the work was executed under the supervision of the engineers of the petitioner-objector. Further, the work as executed was accepted and payment in respect thereto was made without any reservation. On the basis of evidence produced before him, he concluded that the failure of structure was rather attributable to deficiency in designs & drawings. Spot inspection also, according to the arbitrator, led to the same finding.
24. The aforesaid Award and the decision of the Honble High Court on the Objections filed by the Govt. of NCT of Delhi which attained finality would show that it was categorical finding of the learned Arbitrator that the collapse of the bridge was due to failure on account of inadequate and defective designs and the drawings supplied to the Govt. of NCTD and not because of the poor workmanship and use of substandard material by the contractor. Therefore, the respondents failed to prove that the applicants, as In-charge of the construction of the Bridge, were responsible for collapse of the bridge. The same was the charge against them in departmental proceedings also.
25. Now let us see the report of the inquiry officer dated 30.05.1998 in respect of Sh. S.C. Gupta which was prior to the aforesaid Award dated 19.02.1999. According to the Prosecution Witnesses, the concrete was weak and the bridge was liable to collapse. Further, they added that many of the concrete samples had honey combing and voids proving that the concrete had not been compacted well resulting into the reduction in the strength of the concrete. Therefore, the Enquiry Officer held that the charges against the applicants have been proved.
26. Thus the Award of the Arbitrator as upheld by the Honble High Court and the report of the Enquiry Officer in the departmental enquiry proceedings have entirely opposite conclusions on the issue which is the crux of the matter. The argument of the learned counsel for the respondents that Award of the Arbitrator and the decision of the High Court on the Objections filed by the Govt. of NCT of Delhi has no relevance in the matter, cannot be accepted. In this connection, the statement of Article of charge framed against Shri R.C. Sood, Superintending Engineer is quite relevant. The charge against him was that the structural drawings for the construction of the bridge as approved by him was found deficient in detailing of reinforcement loading to reduced capacity. In the statement of imputation, it has been further stated that the few fine hair crack here and there on the exponed surface of main girder of right and left prior. These fine cracks being of he nature/type which do appear on almost all concrete surface in the cover portion outside the reinforcement and particularly in the repair and finishing work done with cement and mortar/plaster due to temperature variation/expansion and contraction.
27. We are, therefore, of the considered view that the charges against the applicants were not based on any rationale. Rather, the respondents themselves were of the opinion that the fine cracks appeared on bridge were quite a normal feature and collapse of the bridge was actually due to the deficiency in the structural drawings for which the applicants were admittedly not responsible. Thus, the charge against the applicants being baseless, the evidences adduced against them during the departmental proceedings have also rendered worthless. We, therefore, find merit in the contention of the applicants that there were no valid evidences against them in the departmental proceedings and the conclusion of the Enquiry Officer that the charges against them have been proved is wrong. In such a situation, the other grounds raised by the applicants in challenging the impugned orders of the disciplinary authority as well as the appellate authority have no relevance.
28. Resultantly, both the O.As are allowed. The impugned respective orders of the disciplinary authority and the appellate authority are quashed and set aside. Consequently, the respondents are directed to reinstate the applicants in service with all consequential benefits except the back wages. They shall also issue appropriate orders in this regard within a period of two months from the date of receipt of a copy of the order. No order as to costs.
6. Admittedly, this O.A is also an identically placed one as the O.As 452/2002 (supra) and 453/2002 (supra). There is no dispute with regard to the similarity of these cases by the parties. Only difference in the charge sheet is with regard to the designations and the duties of the officers concerned The learned counsel for the respondents Mrs. P.K. Gupta has also admitted that the legal issues raised in all these O.As are the same.
7. In view of the above facts and circumstances of the case, in our considered opinion, it is not necessary for us to go into the details of this case once again. Rather, we are inclined to allow this O.A on the very same premises on which O.A 452/2002 (supra) and O.A 453/2002 (supra) have been allowed by this Tribunal vide its order dated 04.07.2011. Accordingly, this O.A is allowed. The impugned disciplinary authoritys order dated 23.04.2003 and the appellate authoritys order dated 11.04.2005 are quashed and set aside. As in the case of the aforesaid two O.As O.A 452/2002 (supra) and O.A 453/2002 (supra), the respondents shall reinstate the applicant in service with all consequential benefits except back wages. They shall also issue appropriate orders in this regard within a period of two months from the date of receipt of a copy of this order. However, as regards the question of treating the suspension period from 06.04.1994 to 15.05.1995 in terms of FR 54-B (6) is concerned, the respondents shall consider the entire facts and circumstances of the case and communicate the decision to the applicant within the aforesaid period. There shall be no order as to costs.
(Dr. Ramesh Chandra Panda) ( G. George Paracken )
Member (A) Member (J)
SRD