Central Administrative Tribunal - Jabalpur
Rakesh Kumar Tripathi vs M/O Communications on 27 March, 2023
1 OA No.200/223/2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/223/2018
Jabalpur, this Monday, the 27th day of March, 2023
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MR. KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Rakesh Kumar Tripathi, S/o Shri H.L. Tripathi, aged about 47 years,
Assistant Director General, MP-LSA, TERM Cell, Department of Telecom,
IInd Floor, Doorsanchar Bhawan, Arera Hills, Bhopal (M.P.) - 462015, R/o
D-86, Shalimar Seven Gardens, Near Ashima Mall, Hosangabad Road,
Bhopal (M.P.) - 462026 -Applicant
(By Advocate - Shri Manoj Sharma, Sr. Advocate assisted by Ms.
Lavanya Verma)
Versus
Union of India through its Secretary, Ministry of Communications and
Information Technology, Department of Telecommunications, Room
No.919, Sanchar Bhawan, 20-Ashoka Road, New Delhi - 110001.
-Respondents
(By Advocate - Shri Surendra Pratap Singh)
(Date of reserving order : 08.02.2023)
ORDER
By Akhil Kumar Srivastava, JM.-
By way of the present Original Application, the applicant is challenging the charge memorandum dated 07.04.2016 (Annexure A-1).
2. Brief facts of the case are that the applicant was initially appointed as Assistant Executive Engineer on passing the Indian Engineering Services Examination in electrical stream conducted by the Union Public Service Page 1 of 11 2 OA No.200/223/2018 Commission (UPSC) in 1996 and thereafter the applicant was promoted as Executive Engineer in 2001. The applicant was on deemed deputation in Bharat Sanchar Nigam Limited (BSNL) from 2000-2011 and in November, 2011, the applicant was repatriated to Department of Telecommunication (DoT) and in June, 2013, the applicant was transferred to TERM Cell, DoT Bhopal, M.P. The DoT had launched one project, i.e. Universal Service Obligation (USO) in rural and remote areas, a tender of which was allotted to the BSNL and the applicant has worked in USO project for about three years and thereafter he was transferred to the post of Surveyor of Works in the office of Chief Engineer (Electrical), BSNL Bhopal in the year 2010. After the transfer of the applicant, an unknown complaint was received by the vigilance cell and other authorities of the respondents with regard to work related to USO project. In November, 2010 a committee was formed in violation of CVC guidelines and initiated the enquiry on the pseudonymous complaint and submitted its report on 01.11.2011 (Annexure A-3). The matter was also referred to the CBI and in the enquiry report submitted by the CBI on 20.12.2013 (Annexure A-4) nothing was found against the applicant. However, the Central Vigilance Commission, without considering the enquiry report submitted by the CBI, advised to initiate Page 2 of 11 3 OA No.200/223/2018 departmental enquiry against the applicant vide letter dated 30.12.2013 (Annexure A-5) under Rule 14 of CCS (CCA) Rules, 1965. Thereafter, on 07.04.2016 (Annexure A-1) a charge memorandum was issued to the applicant that too after a lapse of 27 months from the date of advice of the CVC. It is the case of the applicant that the applicant has not been supplied with the original listed documents and certified copy of documents relied upon by the Disciplinary Authority and the enquiry proceedings have not been moved up from the stage of supplying of documents.
3. The applicant submits that as per the guidelines issued by the Department of Personnel and Training vide gazette notification dated 02.06.2017 (Annexure A-10), a fixed period of six months for completion of departmental enquiry has been prescribed and if the enquiry is not completed within six months, then the Inquiry Officer has to submit his report and record the reasons and seek extension of time from the Disciplinary Authority in writing for further proceedings in the departmental enquiry. But, the entire departmental enquiry against the applicant is going in a delayed mode, which is not only in gross violation of the guidelines issued by the DoP&T (Annexure A-10) but Para 24(a) of Rule 14 of CCS (CCA) Rules also. Further, the chargesheet has been issued Page 3 of 11 4 OA No.200/223/2018 to the applicant without any basis on the anonymous complaint made by some unknown person, who had no address, identity and location and to take action on the basis of such anonymous complaint is contrary to the guidelines issued by the CVC on 29.06.1999 (Annexure A-12).
4. In their reply, the respondents have stated that after conducting thorough investigation, the CBI in its report had recommended departmental action against the applicant. In its chargesheet filed before the Special Judge, CBI, Bhopal, it has been stated that negligence on the part of officials of BSNL were found in regard to double payment at three USO sites and, therefore, departmental action was recommended against them by the CBI. The respondents have further submitted that the delay in conducting the departmental enquiry is caused due to the enormous volume of listed documents (334 listed documents containing more than 3500 pages and statements of 34 prosecuting witnesses containing more than 100 pages for preparing three sets each) in the chargesheet. A complete set of listed documents have been sent to Presenting Officer on 24.10.2016 and while going through those documents, the Presenting Officer found certain missing pages/cutting, overwriting and corrections in measurement book etc. and, therefore, the efforts were made to collect such documents from Page 4 of 11 5 OA No.200/223/2018 CBI and it is only in the month of August, 2017, the requisite documents were provided by the CBI. The chargesheet has been issued to the applicant on the basis of enquiry conducted by the CBI and after advice of CVC for initiating proceeding under Rule 14 against the applicant.
5. In his rejoinder, the applicant has reiterated his submissions made in the Original Application. In addition, the applicant submitted that there is delay on the part of the respondents as the original documents till date could not be inspected, which is a mandatory requirement under Rule 14(ii)(i) of CCS (CCA) Rules. Also, there is a delay of about more than two years in issuing the charge sheet and as per the CVC guidelines, it is necessary to issue a charge sheet to the charged officer within one month of CVC recommendation.
6. The respondents have also filed their additional reply to the rejoinder filed by the applicant. The respondents have submitted that the applicant is himself trying to delay departmental enquiry through the issue that the CBI report dated 20.12.2013 should be part of defence documents. However, as per the relevant instructions under CCS (CCA) Rules, 1965, the FIR is a part of the listed documents and the applicant will have full opportunity to defend his position in the departmental inquiry.
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7. Heard learned counsel for the parties and perused the pleadings and the documents available on record.
8. Learned counsel for the applicant argued that not only the impugned chargesheet was issued belatedly but there is also a considerable delay on the part of the respondents in conducting the enquiry and due to such prolonged delay, one Shri Chaitanya Shukla, who is junior to the applicant has already been promoted over and above by superseding the applicant. Learned counsel further argued that Shri Chaitanya Shukla, whose name is also included along with the applicant and was also charge sheeted by the Department has been exonerated by the Department. In those backdrop, it has been averred by learned counsel for the applicant that since the career advancement of the applicant is seriously affected due to pendency of the departmental enquiry, the respondents may be directed to conclude the departmental enquiry, within six months from now and if they fail to conclude the departmental enquiry within six months, the disciplinary proceedings under the garb of impugned charge memorandum may be terminated.
9. We have given our thoughtful consideration to the entire matter. Page 6 of 11 7 OA No.200/223/2018
10. It is a settled principle that a mere chargesheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established and it is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. However, none of the grounds have been raised, which warrants interference by this Tribunal.
11. It is also well settled that the prolonged delay in concluding the departmental enquiry certainly causes prejudice to a charged official. 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 proceeding. 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.
(See : State of Andhra Pradesh vs. N. Radhakishan, 1984 (4) SCC 154) Page 7 of 11 8 OA No.200/223/2018
12. We find that in the instant case, a complaint (Annexure A-2) was received by the Department in regard to the irregularities relating to the work of USO project. Accordingly, a Committee was constituted by the respondent department to investigate on the said complaint and as per Annexure A-3, the Committee submitted its detailed report on 01.01.2011. Since the complaint involves financial irregularity alleged to have been committed by the official of the BSNL entrusted with the work of USO project, the matter was also referred to CBI and after enquiring the matter in detail, the CBI submitted its final report on 20.12.2013 (Annexure A-4). Meanwhile, a proposal was sent to the CVC by the DoT and agreeing with the proposal, the CVC has advised to initiate major penalty proceedings against the applicant, the then Executive Engineer (EE) along with other official vide Office Memorandum dated 30.12.2013 (Annexure A-5).
13. The charge memorandum dated 07.04.2016 issued to the applicant containing 46 pages is sufficient enough to demonstrate that it requires considerable period of time for preparation and hence the act of the respondents to serve the charge memorandum after almost two years from the date of advice of the CVC appears to be justified. As per the charge Page 8 of 11 9 OA No.200/223/2018 memorandum, the following Articles of Charge have been framed against the applicant:
"Statement of Articles of Charge framed Against Shri R.K. Tripathi, the then EE (Electrical), Electrical Division, Bhopal (MP). ================================================= Article-I:
That said Shri R.K. Tripathi, the then EE (Electrical), Electrical Division, Bhopal (MP) while posted and functioning as EE (Electricals), Electrical Division Bhopal during period from June 2007 to July 2010, committed grade misconduct by signing, one by one, two agreements for each USO site namely ATRA, CHAKORA, MEHGAON for executing the work of EI & Fans at said USO sites and again by allowing double payments to the contractors against those agreements without test check of 10% of the measurement recorded by his subordinate, thereby, causing loss to BSNL to the extent of Rs.4,28,700/- (92,000+1,68,350+168350). He also violated the GFR Rule of "Standards of Financial Propriety" while passing the bills against the said agreements for affecting the payment thereof.
Thus by the above acts, said Shri R.K. Tripathi, the then EE(E), Electricals Division Bhopal, failed to maintain absolute integrity, devotion to duty and acted in manner unbecoming of a Government servant contravening Rule 2(1) (i),(ii) & (iii) of CCS (Conduct) Rules 1964. Article-II:
That during the aforesaid period and while functioning in the aforesaid office, said Shri R.K. Tripathi, the then EE(E), Electrical Division, Bhopal, committed grave misconduct by allowing payment of contractors bills for USO works violating the norms of "Test Check of the measurements" defined in CPWS Works Manual as well as minutes of meeting dated 19.11.2008 and he failed to ensure the correctness of quality and quantity of the works mentioned in questioned bills, thereby causing loss to BSNL of Rs. 34,01,451/- in form of excess payment to the contractors due to wrong measurements recorded in the Measurement Books as well as substandard work carried out by the contractors. He also violated the GFR Rule of "Standards of Financial Propriety" while passing the questioned bills.
Thus by the above acts, said Shri R.K. Tripathi, the then EE(E), Electricals Division Bhopal, failed to maintain absolute integrity, devotion to Page 9 of 11 10 OA No.200/223/2018 duty and acted in manner unbecoming of a Government servant contravening Rule 2(1) (i),(ii) & (iii) of CCS (Conduct) Rules 1964."
14. In support of the following two Articles of Charge, an elaborated statement of imputation of misconduct against the applicant is detailed in Annexure-II of the impugned charge memorandum. As per Annexure-III, it can be seen that there are as many as 355 documents listed and on the basis of those documents the Articles of Charge are proposed to be sustained against the applicant. It can also be seen as per Annexure-IV of the charge memorandum that a number of 34 witnesses are to be examined during the departmental enquiry. Thus, it can safely be said that the entire disciplinary proceedings cannot be expedited in a hurried manner and requires sufficient time before reaching to its logical end. Moreover, learned counsel for the respondents had pointed out that the Inquiry Officer could not proceed further due to the interim order passed by this Tribunal on 21.06.2019. Therefore, we are of the view that the delay conducting the enquiry proceedings is not purely attributable to the respondents. However, since a much time has already been elapsed, we hope and trust that the enquiry proceedings will be concluded within a reasonable time, subject to cooperation of the applicant. Regarding the contention of learned Sr. Page 10 of 11 11 OA No.200/223/2018 Advocate that the applicant has been superseded by one of his junior, it has categorically been stated by the respondents, in their reply to MA No.445/2020 that the assessment made by the DPC regarding promotion of the applicant to the Junior Administrative Grade has been kept in sealed cover with the instruction 'not to be opened till conclusion of the disciplinary case'. Hence, the promotional aspect of the applicant has already been taken care of by the respondents by adopting the sealed cover procedure and further steps will surely be taken in future depending upon the outcome of the disciplinary proceedings.
15. In view of the aforesaid, we do not find any procedural irregularity or illegality in issuance of the impugned charge memorandum dated 07.04.2016 (Annexure A-1) except the observations made in the preceding paragraph.
16. Accordingly, this Original Application is finally disposed of, without there being any order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
am/-
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