Central Administrative Tribunal - Delhi
Anil Shrivastava vs Govt. Of Nctd on 16 September, 2022
1 OA No.2115/2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 2115/2015
Order reserved on: 01.09.2022
Order pronounced on: 16.09.2022
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Anil Shrivastava,
Through legal heirs
1. Smt. Seema Shrivastava
Wd/o Late Sh. Anil Shrivastava,
R/o B-137/3A,
Street No.8,
Bhajanpura, Delhi-110053.
2. Ankit Shrivastava
S/o Late Sh. Anil Shrivastava,
R/o B-137/3A,
Street No.8,
Bhajanpura, Delhi-110053.
....Applicants
(By Advocate: Mr. Ajesh Luthra)
Versus
1. Govt. of NCT of Delhi,
Through its Chief Secretary,
5th Floor Delhi Sachivalaya,
New Delhi.
2. South Delhi Municipal Corporation,
Through its Commissioner,
9th floor, Civic Centre,
New Delhi.
3. North Delhi Municipal Corporation,
Through its Commissioner,
4th floor, Dr. S.P.M.Civic Centre,
JLN Marg,
New Delhi-110002.
2 OA No.2115/2015
4. East Delhi Municipal Corporation of Delhi,
Through its Commissioner,
419, IInd floor, Udyog Sadan,
Industrial Area, Patparganj,
Delhi-110092.
... Respondents
(By Advocate: Mr. M.S.Reen)
ORDER
By Hon'ble Manish Garg, Member (J) The present Original Application culminates from the following impugned orders:
(i) Order dated 17.03.2015 passed by the Hon'ble Lieutenant Governor, Delhi in Department Reference: RA no. 1/75/2004 - Appellate order (Annexure A/1)
(ii) Order dated 16.06.2014 in RDA No.1/75/2004 -
Penalty order (Annexure A/2)
(iii) Proposal to inflict penalty of reduction in pay in the present time scale of pay by two stages for a period of two years with cumulative effect vide order dated 30.03.2012 in RDA No.1/75/2004 (Annexure A/3).
2. During the pendency of the present OA, the original applicant expired on 09.06.2020 leaving behind his wife Smt. Seema Srivastava and son Mr. Ankit Srivastava. MA No. 1594/2020 was filed by the legal representatives of the 3 OA No.2115/2015 applicant. The said MA was allowed vide order dated 14.12.2020. Amended memo of parties was taken on record.
2. Brief facts of the case, as borne out of the records of case, are that the deceased applicant herein was served with a statement of imputation/chargesheet issued and served upon the applicant on 30.11.2004 under Regulation 8/8-A of the DMC services (Control and Appeal) Regulations 1959), which reads as under:
"STATEMENT OF CHARGES FRAMD AGAINST SHRI ANIL SRIVASTAV S/O SHRI K.L.SRIVASTAV, UDC, THE THEN TENDER CLERK, EE, SHAH. (N) DIVISTON, MCD.
Shri Anil Srivastav while functioning as Tender Clerk in Shahdara North Division during the year 2003 -2004 failed to maintain absolute integrity and devotion to duty in as much as he committed the following acts of gross misconduct
1. NITS Nos.23 to 30, 33,35,36,39,40,41, and 42 floated during his working only one or two tenders were received in the Division but no action was initiated by Shri Aril Srivastava, Tender Clerk to get these NITs re-circulated.
2. There was poor response from the contractors and rates quoted were on the higher side indicative of pooling by the contractors in connivance with the Shri O.P.Tomar, EE and the Tender Clerk Shri Anil Srivastav.
3. He failed to initiate actions for de-
registration/debarring the contractors who after having purchased the tenders forms failed to submit the tenders on the occasion in the same financial year as stipulated in the Circular No.F. 506/E-in-C/2003/858 dated 23.10.2003.
4. He further failed to follow the proper procedure with regard to sale of the forms to the contractors in the division thereby leaving ample scope for sale of tenders to the select few contractors, in connivance with Shri O.P.Tomar, EE.
5. Having committed such irregularities in floating NITs, Shri Anil Srivastava failed to supply the relevant record for the purpose of investigation of the case despite various opportunities.4 OA No.2115/2015
Shri Anil Srivastav, Terder Clerk, thereby, contravened Rule 3(I) (i) (ii) and (iii) of CCS (Conduct) Rules 1964 as made applicable to the employees of the MCD."
3. Thereafter, a joint enquiry was held against the applicant and one Shri O.P. Tomar, EE. All these charges were emanated from the complaint dated 13.03.2004 of one Sh. Ram Babu Sharma, MLA, which is mentioned above in para 2. The Enquiry Officer (EO) vide inquiry report dated 28.07.2011 held that none of the charges against the applicant were proved and gave his finding, which reads as under:-
"CHARGE No. 1
As far as this charge is concerned, in this connection it is pointed out that Sh. O.P. Tomar while appearing as DW-l clearly stated that the TC has no role if one or two tenders are received. The duty of the TC only confines that on receipt of the tender to prepare the comparative statement and submit the same to the EE through the Divisional Accountant. The CO in his written statement had submitted that wide publicity of the NITs referred to in the charge-sheet had been made through Press by PIO in leading Newspapers. The information of these NITs were sent to all the concerned officers, various Contractors Association of MCD and displayed on the Notice Board also. The fact is clear from the documents enclosed. It is amazing to expect from a Tender Clerk to get the NITs re-circulated on his own. This charge stands nullified with the documentary evidence which is on record to show that the required information in respect of these NITs was sent to all concerned parties, which amounts to due publicity. Hence, this charge is NOT PROVED against the CO.CHARGE No. 2
As far as charge No. 2 is concerned, the prosecution has relied upon the statement of Sh. Rahul Saraswat, the then AE (Vigilance) which has made the observation which inter- alia provided that for making an analytical study for comparison of this particular Division w.r.t. other divisions of Trans-Yamuna area, the detailed data is required to be obtained first from all the Divisions though it is not going to be of great help in reaching to any conclusion. Moreover, the 5 OA No.2115/2015 TC has nothing to do with the poor response and higher rates quoted by the contractors except preparation of comparative statement. Here, it will not be worthwhile to point out that the duties of the Tender Clerk are only confined to preparation of comparative statement consequent upon opening of the tender. There is no evidence on record contrary to this. However, PW-1 during cross-examination clearly admit this fact. The prosecution failed to prove to Charge No. 2. Therefore, the charge No. 2 is NOT PRCVED CHARGE No. 3 The duty of the Tender Clerk is only to prepare the report and submit the same to the higher authorities, as admitted by PW-1 under cross-examination. The documents available on record reveal that there was no case, where the contractor have submitted the tenders on the 3rd occasion in the same financial year, after the issue of the Circular dated 23-10- 2003. The statement prepared by the TC further reveals that after issuance of the Circular, NIT No. 35 to 43 were circulated and only in NIT No. 38 & 42 some of the tenders forms were not put into tender box after purchase of tenders. No violation of the circular No. F. 506/E-in-C/2003/858 Dated 23-10-2003 could be proved against the CO.CHARGE No. 4
The CO in his written submission elaborated the duties of Tender Clerk, i.e. to sent the NITs to all concerned officers, various contractors associations of the MCD, to display the NITs on Notice Board of the Division and to give wide publicity through leading newspapers and maintain the record, i.e. tender sale/receipt register, tender opening register, NIT register, Record of application of sale of tenders. Whereas, the prosecution could not place any document on record explaining proper procedure to be followed in sale of tender forms to the contractors, On the contrary CO has explained in detail this process which has not been rebutted by the prosecution on any count, which rules out any favoritism to any particular contractor by the CO. This charge, therefore, stands NOT PROVED.
CHARGE No.5 Upon receipt of complaint from Shri Ram Babu Sharma, dated 13-3-2004, PW-1l visited the office of Executive Engineer and procured all relevant record as demanded by him in the subject matter. No Vigilance Inspector visited during the tenure from 18-3-2004 to 27-4-2004 in the division for collecting the other record. Even no intimation from the Vigilance Department for collecting the record was received in the Division. The C.O. in his written statement stated that he was on leave w.e.f. 9-4-2004 to 27-4-2004 after getting the same sanctioned from the Competent Authority with permission to leave the station. It was further 6 OA No.2115/2015 stated that Sh. Mukesh Kumar, Cashier was looking after the charge of CO during the leave period and the record was in his possession. Prosecution failed to produce oven a single instance where has not cooperated, in the investigation process resulting in nullifying the charge against the CO. Hence, charge No. 5 is NOT PROVED."
4. The DA disagreed with the inquiry report dated 28.07.2011 and passed an order dated 30.03.2012. The relevant part of the order reads as under:
"I have gone through the inquiry report; charges levelled against the COS. and allied records of the case. The charge No.1 has been held as 'not proved' by the inquiry officer on the ground that no circular/office order etc. has been found on record to show that in case of poor response, NITS are required to be re-circulated. The charge No.2 has also been held as 'not proved' on the ground that the prosecution has failed to prove pooling of tenders. The inquiry officer has observed that I have gone through the Ex. S-3 which shows that in the NITS under complaint only one or two tender forms have been sold whereas in other NITs the sale of tender forms and receiving of tenders was more than 30. The rates quoted in other NTS were below average the justified rates whereas in NITs under complaint the rates are on higher side than the justified rates which clearly shows the connivance of the C.Os. with contractors.
The charge No.3 has been held as 'not proved' by the inquiry officer on the ground that prosecution has failed to conclusively point out the names of tenderers who have purchased the tender forms and have not submitted the tenders more than two times in the same financial year. The inquiry officer has totally relied upon the written submissions of the C.Os. submitted during inquiry proceedings that there was no such case. Although the said written submission of the C.Os. was not supported with any documentary evidence but the inquiry officer has given cognizance to the same.
The charge No.4 has also been held as 'not proved' on the ground that the C.Os. have maintained the record pertaining to sale of tender forms; receipt of tender forms and tender opening registers etc. But the record pertaining to receiving of application for tender forms was not maintained. This is possibility that the tender forms were not given to all the contractors who had applied for the tender form. The C.Os. should have also maintained the record as to how many contractors have applied for tender 7 OA No.2115/2015 forms and how many tender forms have been issued. But they failed to do so.
The charge No.5 relates to not extending cooperation to the Vigilance Department during investigation of the case. The inquiry officer has held this charge as 'not proved'. As per Ex.S-6 Shri 0.P. Tomar E.E. attended the Vigilance Department on 23/03/2004 and tendered his statement. Thereafter two more letters dated 05/04/2004 and 13/04/2004 were issued to him for attending the Vigilance Department to furnish the requisite documents. As per Ex.S-4, S.E./Shah.-North Zone directed Shri O.P. Tomar E.E. to attend the Vigilance Department and to furnish the requisite documents by 15/04/2004 but instead of furnishing the documents to the Vigilance Department both the C.Os. proceeded on leave turn by turn. The requisite documents were not furnished by them to the Vigilance Department till completion of investigation.
In respect of Charge No.6 Shri O.P. Tomar E.E. has been held responsible for not exercising proper supervision & control over the functioning of his subordinate staff. This charge has also been held as 'not proved' by the inquiry officer. I do not agree with the inquiry officer. Had the Shri O.P. Tomar E.E. exercised proper Supervision & control over the functioning of his subordinate staff, the aforesaid irregularities in the tendering process would have been averted.
In view of above I am in total dis-agreement with the findings of the inquiry officer and held all the charges levelled against both the C.Os. namely S/Shri O.P. Tomar Ex. Engineer and Anil Srivastava UDC as 'proved'. Since Shri O.P. Tomar Ex. Engineer is going to retire from municipal services after attaining the age of superannuation on 31/03/2012, his case may be placed before the Corporation after his retirement for taking further necessary action in the matter. In respect of Shri Anil Srivastava UDC considering the gravity of misconduct on his part I propose to inflict the penalty of 'reduction in pay in the present time scale of pay by two stages for a period of two years with cumulative effect' upon him. The impugned penalty shall run separately on Shri Anil Srivastava UDC."
5. Thereafter, vide memo dated 01.07.2013, a show cause notice was issued to the applicant. Applicant submitted a reply thereto raising number of pleas. However, the DA vide 8 OA No.2115/2015 order dated 16.06.2014, passed order of penalty against the applicant and came to the following conclusion:
"The show cause notice to the proposed penalty was issued to Shri Anil Srivastava on 01/07/2013. He has submitted reply. He contended that the administrative power to recall tender vested with the EE and higher authority and he is not competent to award the contract. He claimed that contracts awarded at rates less than the justified rates approved by the competent authority. His role is restricted only to prepare comparative statement, put it before EE through Divisional Accountant. He also contended that he had properly maintained records of the NIT, IO has held that none of the charges against the COs stands proved and the DA disagreed with the findings of the IO without justified reason. He pleaded for opportunity of personal hearing and exoneration from all charges. Personal hearing was accorded on 27/11/2013. The CO was present and reiterated again the same pleadings as above.
Shri Anil Srivastava, UDC has not brought out any new facts and justification thereof. Therefore, I hereby conclude, that there are no new grounds for reconsideration of the proposed penalty. I hereby confirm the penalty of "reduction in pay in the present time scale of pay by two stages for a period of two years with cumulative effect" upon Shri Anil Srivastava, UDC."
6. The applicant filed review representations against the penalty orders dated 20.08.2014, 22.08.2014 and 16.10.2014. However, he was advised by respondent No.2 vide communication dated 22.10.2014 to file a statutory appeal before respondent No.1. Accordingly, applicant filed an appeal on 17.10.2014 to the Appellate Authority (AA). His appeal was rejected vide order dated 24.03.2015 by the AA which reads as under:
"(7) I have gone through the contentions of the appellant in his appeal petition and during the personal hearing, his representations to the Disciplinary Authority, the impugned penalty order and relevant records of the case. In the instant case the appellant has only reiterated his contentions made before the Disciplinary Authority. The Disciplinary Authority, 9 OA No.2115/2015 for reasons recorded, has not found any merit and held the appellant guilty of the Articles of Charge. I am in agreement with the decision of the Disciplinary Authority.
8) In view of the totality of facts and circumstances of the case, in the absence of any credible defense put forward by the appellant, I am of the considered opinion that the averments made by the appellant in his appeal are devoid of merit. I, therefore, see no reason to interfere with the impugned office order dated 25.06.2014, conveying the decision of the Disciplinary Authority, Commissioner, East DMC as the Disciplinary Authority. The appeal is hereby rejected."
Hence, the present OA.
7. The sum and substance of arguments put forth by the learned counsel of the applicant are as under:
i. The allegation is based on a complaint dated 13.03.2004 by one Shri Ram Babu Sharma, who was a member of Delhi Legislative Assembly and complaint dated Nil by Delhi Municipal Contractor's Association (Regd). Both the complaints were against Shri O P Tomar, EE (co -
delinquent) only. The applicant's name was not even mentioned in the said complaints. He has been made a scapegoat for the act/omission on the part of the Shri O P Tomar who was his superior. ii. No independent witness was produced as witness nor the complaints were proved in accordance with law. Hence the present case is of no evidence. iii. The Statement of PW i.e. Shri Rahul Saraswat has not been taken into consideration as he has not 10 OA No.2115/2015 supported the case of prosecution in his cross examination.
iv. All the charges against the applicant were not proved by the Inquiry Officer in its report. v. The DA instead of recording a disagreement note, as required under the relevant provisions of rule, has acted with a predetermined mind to impose a penalty contrary to the law of the Hon'ble Supreme Court. The disagreement note was required to be tentative in nature but in this case the DA has not followed this mandatory requirement of the statutory rule.
vi. No loss has been caused to public exchequer on account of any act/omissions on the part of applicant.
vii. The penalty order is also disproportionate to the charges levelled and proved in accordance with law.
viii. The appellate order is bad in law as the same is non-speaking one and grounds urged in the appeal preferred by the applicant have not been dealt with. ix. The orders of DA as well as AA have been passed in mechanical manner and, therefore, liable to be set aside.
11 OA No.2115/2015
8. During the course of arguments, the learned counsel relied upon decision of Hon'ble Apex Court in Yoginath D. Bagde Vs State of Maharashtra anr. decided on 16.06.1999 in support of the case of applicant.
9. Per Contra, the learned counsel for the respondents contended that OA is not maintainable and should be dismissed on the ground that the inquiry has been held as per rules. The applicant has been given proper and full opportunity to defend his case and no principle of natural justice has been violated by the respondents. It is further submitted that it has been held by Hon'ble Apex Court in catena of judgments that the Courts/Tribunals cannot go into the correctness of the charges, re-appreciate the evidences, step into the shoes of the Disciplinary Authority and the employee must establish with Rules that what prejudice has been caused to him. It is submitted that in respect to Rule 9(21) of Railway Servants (Discipline & Appeal) Rules, 1968, in the case of Sushil Kumar Banerjee vs. State of West Bengal & Ors., (1980) 3 SCC 304 it has been held:
"xxx xxx failure to comply with the requirements of rule 8 (19) of the 1969 rules does not vitiate the enquiry unless the delinquent officer is able to establish prejudice. ......"
10. It is further submitted that in the case of State Bank of Bikaner & Jaipur vs. Prabhu Dayal Grover, (1996) 1 SLJ SC 145 it has been held that the AA was not required to record 12 OA No.2115/2015 all detailed reasons particularly when it agreed with the findings of Inquiry Officer, and as accepted by the DA. The findings recorded by the Inquiry Officer as well as orders passed by DA, AA and Revision Authorities (RA) are detailed, analytical and reasoned orders, no judicial interference is warranted.
11. He further relies upon the decision of Administrator, Union Territory of Dadra and Nagar Haveli vs. Ghibhia M Lad, 2010 (3) AISLJ SC 28 after considering the judgments of B.C.Chaturvedi vs. Union of India, 1996 SCC (L&S) 80, UCO Bank vs. P.C.Kakkar, 2003 SCC (L&S) 468, Union of India vs. S.S.Ahluwalia, 2007 (2) SCC (L&S) 627, State of Meghalaya vs. Macken Singh, 2008 (2) SCC (L&S) 431, DGRPF vs. Sai Balu, 2003 SCC (L&S) 464, it was held as follows:
"The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal it cannot interfere with the discretion exercised by the Disciplinary Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal."
12. We have given our utmost consideration to the rival contentions and have minutely perused the record placed before us.
13 OA No.2115/2015i. A bare perusal of the order dated 31.03.2012 would show that the same is not a disagreement note. As per Rules, before disagreeing with the findings of inquiry officer, the DA must apply its mind and give reasons in the form of disagreement note as to why he disagrees with the findings of the enquiry officer. Thereafter, after forming his opinion a notice ought to have been issued by DA stating the penalty proposed. In the present case, DA has passed an order itself instead of a disagreement note, with a pre-determined mind, without following the principles of natural justice, to impose a definite penalty. Again a final penalty order dated 16.06.2014 was issued without even recording the submissions/ contentions to the applicant. Hence, instead of preparing a disagreement note, an order dated 31.03.2012 has been passed with a pre-determined mind to impose a pre-determined penalty. The disagreement has to be tentative in nature which is absent in the present case and the same is reflected in the order itself which, as such is bad in law. The findings arrived at by the DA are based on hear-say as the charges levelled are on the basis of the complaint made by Shri Ram Babu Sharma dated 14 OA No.2115/2015 13.03.2004, who was a member of Delhi Legislative Assembly and complaint dated Nil made by Delhi Municipal Contractor's Association (Regd). Both the complaints were against Shri O P Tomar, EE (co - delinquent) only. The applicant's name was not even mentioned in the said complaint(s). No independent witness was produced nor were the complaints proved in accordance with law. The case is of no evidence. Even the statement of PW i.e. Shri Rahul Saraswat, the then AE (Vigilance) in his cross examination did not support the case of prosecution. Even otherwise, the complaint was made by Association who might have been an interested party and veracity of the said complaint has not been proved in accordance with law. All the charges were not proved in the inquiry report. The disagreement has to be tentative in nature which is in the order itself and as such is bad in law. There was no loss caused to public exchequer on account of any act/omissions on the part of applicant either. It is also important to note that even the appellate order bad in law as the same is a non- speaking one and grounds urged in the appeal preferred by the applicant have not been dealt in the appellate order. A perusal of the appellate order 15 OA No.2115/2015 would show that the sole reason which weighed in the mind of the AA for dismissing the appeal was that no new ground/fact had been furnished by the Charged Officer which warranted fresh consideration in the matter that the charges levelled against Charged Officer were of serious nature and same had been dealt by DA. The approach of the AA cannot be considered in accordance with law. The AA was not bound by the findings recorded by the Inquiry Officer or even the DA. It was required to look into the contentions raised by the respondents and thereafter decide as to whether the charges levelled against the applicant got established during the inquiry proceedings and whether the punishment imposed on the applicant was justified. The fact that the charges were serious in nature, was no ground to look into the justification of the findings recorded by the Inquiry Officer.
ii. The DA as also the AA did not consider the facts and legal position in correct perspective and passed the impugned order. In the case of Yoginath D. Bagde Vs. State of Maharashtra and another reported in AIR 1999 SC 3734, the Court held that if a show cause notice is issued to the charged 16 OA No.2115/2015 official after forming an opinion to inflict the punishment then said show cause notice is bad in law. The Hon'ble Apex Court in the case of Shekhar Ghosh Vs. Union of India and another reported in (2007) 1 SCC 331 and in the case of Kranti 17 Associates Private Limited and another Vs. Masood Ahmed Khan and others reported in (2010) 9 SCC 496, in which principles regarding "Recording of Reasons" and "Post Decisional Hearing" are discussed. If DA had already made up its mind before giving an opportunity of hearing, then such a post decisional hearing in a case of this nature, is not contemplated in law. Since DA had made up its mind already, therefore, result of such hearing was a foregone conclusion. Even otherwise, impugned order dated 16.06.2014 does not possess reasons to reach to the conclusion about misconduct of the applicant and order has been passed in a cryptic and perverse manner.
iii. The case law relied upon by the learned counsel for the respondents, no doubt, lays down correct proposition of law, however, the principle enshrined in the said judgments are very wide and broad in nature and are applicable when there is 17 OA No.2115/2015 at-least some evidence. The law is well-settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In Kuldeep Singh vs. The Commissioner of Police & Ors., JT 1998(8) SC 603 = (1999) 2 SCC 10, this Court, relying upon the earlier decisions in Nand Kishore vs. State of Bihar AIR 1978 SC 1277 = (1978) 3 SCC 366 = (1978) 3 SCR 708; State of Andhra Pradesh vs. Sree Rama Rao AIR 1963 SC 1723 = (1964) 3 SCR 25; Central Bank of India vs. Prakash Chand Jain AIR 1969 SC 983; Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors. AIR 1976 SC 98 = (1976) 2 SCR 280 = (1976) 1 SCC 518 as also Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) & Ors. AIR 1984 SC 1805 = (1985) 1 SCR 866 = (1984) 4 SCC 635, laid down that although the court cannot sit in appeal over the findings recorded by the DA or the Enquiry Officer in a departmental enquiry, it does not mean that in no circumstance can the court interfere. 18 OA No.2115/2015 iv In view of the above discussion, it must be held that the orders passed by the DA as also the AA cannot be sustained and are liable to be set aside as the departmental authorities had erred in disagreeing with the findings recorded by the Enquiry Officer and all charges levelled against the applicant were not established. Cumulatively, it appears that respondents/authorities caused illegality and arbitrariness in passing the impugned orders and case of the applicant is made out for interference.
13. Resultantly, OA is allowed and impugned orders dated 17.03.2015, 16.06.2014 and 30.03.2012 (Annexure A/1, A-2 and A-3 respectively) are quashed and set aside. Applicant shall also be entitled to all consequential benefits including arrears of pay, which shall be paid to the legal representatives of the applicant in accordance with law within three months from the date of receipt of a copy of this order. There shall be no orders as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /sd/