Central Administrative Tribunal - Bangalore
Y Veerapratap vs M/O Labour & Employment on 19 July, 2023
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OA.No.170/00568/2020/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00568/2020
DATED THIS THE 19TH DAY OF JULY, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Y. Veera Pratap,
S/o Y. Hanumantha Rao,
Aged about 53 years,
Working as Deputy Director (Finance),
ESIC Medical College and Hospital,
Kalaburagi,
Residing at House No. 2-909/58/12,
Somashekhar K. Patil - Kalyana Nilaya
GDA, 1st Block,
Veerendra Patil Naga,
Sedam Road,
Kalaburagi - 585 106
Kalaburagi Dist .... Applicant
(By Shri Vishwanath Bhat, Advocate)
Vs.
1. The Union of India,
Represented by its Secretary,
Ministry of Labour & Employment,
Road No. 2, Rafi Marg,
New Delhi 110 001
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OA.No.170/00568/2020/CAT/BANGALORE
2. The Director General,
Employees State Insurance Corporation,
Panchdeep Bhawan, CIG Road,
New Delhi 110 002 ...Respondents
(By Shri N. Amaresh, Senior Panel Counsel)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(a) Issue writ of certiorari or any other appropriate writ or order or direction quashing the impugned order bearing Ref. No. C-14/13/31/2018-Vig dated 09.03.2020 passed by the 2nd respondent, true copy of which is been produced and marked as Annexure-A8, as the said order is illegal, arbitrary, unjust, without application of mind and thus violative of Articles 14 and 16 of the Constitution part from being contrary to Regulation 26 of the ESIC Regulations 1959;
(aa) Issue a writ of certiorari or any other appropriate writ or order to quash the Order bearing Ref. No. C-
16/15/09/2020-Vig dated 30.03.2021 passed by the first respondent which has been produced as Annexure-A10 as the same is illegal, unjust, arbitrary, capricious apart from being in contravention of Articles 14, 16 and 21 of the Constitution of India.
(b) Issue writ of mandamus or any other appropriate writ or order or direction, directing the respondents, in particular the 2nd respondent to grant the applicant all the consequential benefits, as if there is no order of penalty and grant the applicant all the consequential benefits like 3 OA.No.170/00568/2020/CAT/BANGALORE pay fixation, seniority, promotion and other benefits which he is legally entitled to;
(c) Pass such other order/s as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, in the interest of justice and equity."
2. Briefly stated the facts as narrated by the applicant are that he joined the service as Insurance Inspector now called as Social Security Officer in the ESIC during September, 1997. On completion of probationary period, he was promoted on ad hoc basis as Assistant Director and subsequently he was regularly promoted as Assistant Director. Further, he was promoted as Deputy Director. In the month of July, 2017 he was posted as Deputy Director, ESIC Medical College and Hospital, Gulbarga. It is submitted that the Dean of the ESIC Medical College and Hospital, Gulbarga issued an e-tender notification for housekeeping service in the month of December, 2017. Four agencies participated in the e-tender. The duly constituted Tender Evaluation Committee rejected all the four agencies as none of them had the requisite eligibility criteria.
3. Thereafter, a second e-tender notification dated 08.02.2018 was issued. Sealed quotations were invited from the 4 OA.No.170/00568/2020/CAT/BANGALORE interested and reputed housekeeping agencies having experience of at least 3 years in handling housekeeping work in reputed organisations including ESIC/Government/Semi-Government/ Public Sector Undertakings having more than 120 housekeeping under one roof. The terms and conditions of e-tender have been mentioned in the said notification. In pursuance to the said tender notification, 6 firms offered their bids. They are as follows:
1) M/s Everest Human Resource, New Delhi
2) M/s Firstman Management Services (P) Ltd., Bangalore
3) M/s Global Management, Bangalore
4) M/s Manish Man Power Agency, Kalaburagi.
5) M/s Oriental Facility, Navi Mumbai.
6) M/s Sri Udyog Enterprises, Bangalore.
4. A Technical Evaluation Committee consisting of the following members was constituted by the Dean, ESIC Medical College and Hospital, Gulbarga (competent authority):
1) Dr. H.S. Kadlimatti, Professor & Registrar
2) Dr. Anilkumar Doddamani, Professor & MSO
3) Shri Y. Veera Pratap, Deputy Director (Finance) 5 OA.No.170/00568/2020/CAT/BANGALORE
4) Shri Vijay Kumar, Deputy Director (General) The applicant is one of the members in the said committee.
5. Two firms fulfilled the eligibility criteria prescribed in the e-tender viz., 1) M/s Oriental Facility, Navi Mumbai and 2) M/s Global Management, Bangalore. After opening of the financial bids and on their comparison, M/s Oriental Facility, Navi Mumbai was declared as lowest bidder (L1). The Minutes of the Tender Evaluation Committee were approved by the Dean and accordingly the Dean has approved the successful bid of M/s Oriental Facility, Navi Mumbai as L1. It appears that on some complaint made by M/s Global Management, Bangalore, one of the eligible bidders, the ESIC (Vigilance) Headquarters directed the Deputy Director (Vigilance) South Zone, Chennai to conduct thorough investigation. The applicant has not been summoned during the vigilance investigation, however, to the utter surprise of the applicant, the 2nd respondent i.e. the Disciplinary Authority issued Articles of Charges on 08.11.2018. Along with the Articles of Charges, statement of imputation of misconduct in support of the charges proposed to be sustained, the list of documents were enclosed. However, the list of witnesses by whom the proposed Articles of 6 OA.No.170/00568/2020/CAT/BANGALORE Charges were sustained were not enclosed. The applicant submitted his reply denying the allegations. The Inquiry Officer submitted his report holding that there was no mala fide intention and the COs have not violated Rule 3(1)(i) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. However, it was held that there is only lack of devotion to duty on their part and the COs thereby violated Rule 3(1)(ii) of the CCS (Conduct) Rules, 1964 in respect of both the charges. Copy of the Inquiry Report was made available to the applicant.
6. The applicant submitted his detailed reply requesting the Disciplinary Authority not to accept the report of the Inquiry Officer and exonerate him from the charges. The Disciplinary Authority, however, imposed the penalty of reduction to lower stage in time scale of pay for a period of 5 years and upon expiry of such period, reduction will have the effect of postponing the future increments of his pay. Being aggrieved, the applicant preferred an appeal before the Respondent No. 1. During the pendency of the application before this Tribunal, the Appellate Authority has passed the order rejecting the appeal, thereby confirming the order of the 7 OA.No.170/00568/2020/CAT/BANGALORE Disciplinary Authority, accordingly, the applicant amended the OA challenging the order of the Appellate Authority as well.
7. Learned counsel Shri Vishwanath Bhat representing the applicant submitted that, though the Inquiry Officer while giving his findings ultimately comes to the conclusion that there was no mala fide intention and the COs have not violated Rule 3 (1)(i) and 3(1)(iii) of the CCS (Conduct) Rules, 1964, however, held that there is only lack of devotion to duty on their part and the COs, thereby, violated Rule 3(1)(ii) of the CCS (Conduct) Rules, 1964 relating to both the charges. The Disciplinary Authority, without taking into consideration the report submitted by the Inquiry Officer and without application of mind, blindly passed the impugned order of penalty holding that the charges levelled against him have been proved. The second show cause notice was issued by the Deputy Director (Vigilance) who is not the Disciplinary Authority to the applicant. No notice on the punishment proposed was issued. The applicant has been deprived of offering his representation to the penalty proposed. The order of the Appellate Authority is cryptic and non-speaking. None of the contentions raised by the applicant in the appeal has been considered by the 8 OA.No.170/00568/2020/CAT/BANGALORE Appellate Authority. Learned counsel has placed reliance on the orders passed by the Appellate Authority relating to the other two members of Technical Evaluation Committee wherein the order passed by the Disciplinary Authority has been modified and the penalty has been reduced by the Appellate Authority. Learned counsel argued that the entire action of the Appellate Authority and the Disciplinary Authority are in contravention of the principles of natural justice. Consequently the same is liable to be set aside.
8. Learned counsel Shri N. Amaresh representing the respondents submitted that subsequent to a complaint, a vigilance inquiry was conducted by ESIC (Vigilance), South Zone, Chennai wherein certain procedural lapses were highlighted and charges were levied against the applicant for his lapses in scrutiny of documents and disciplinary inquiry was initiated. Considering the Inquiry Report and the other materials available on record, the Disciplinary Authority passed the penalty order as the applicant had failed to exercise his duties properly as a member of Technical Evaluation Committee. The applicant preferred an appeal against the order of the Disciplinary Authority. Before the matter was decided by the Appellate Authority, this OA was filed. The 9 OA.No.170/00568/2020/CAT/BANGALORE applicant still has the option of filing a Review Petition under Regulation 22 of ESIC (Staff and Conditions of Service) Regulations, 1959. Thus, the OA filed by the applicant is premature and is not maintainable.
9. Learned counsel further submitted that the applicant, being the member of Technical Evaluation Committee, while examining the tender documents, failed to point out the fact that the documents uploaded by M/s Oriental Facility, Navi Mumbai did not enclose the copies of GST/Service Tax returns for the last 3 years as envisaged in Clause 7 (2) in the terms and conditions of the tender and also ESI/EPF returns for the last 3 years as envisaged in Clause 7 (3) in the terms and conditions of the tender were not submitted. Clause 7 (5) was also not complied with. The Disciplinary Authority, having perused the Inquiry Report, has forwarded the same through the controlling officer, seeking comments from the charged official. The Disciplinary Authority has passed a reasonable order after addressing the pleas made by the charged official in the representation (Annexure-A8) against the Inquiry Report. The applicant having about 25 years of working experience in ESIC and 8 years of experience as Deputy Director, is 10 OA.No.170/00568/2020/CAT/BANGALORE supposed to know the Rules and Regulations of the ESIC. The comparison made by the applicant quoting the cases of other officers which are not entirely similar to his case is wholly untenable. Learned counsel justifying the impugned orders, seeks for dismissal of the OA.
10. We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
11. In the circumstances, the points that arise for our consideration are:
1) Whether the penalty order issued by the Disciplinary Authority dated 09.03.2020 (Annexure-A8) is justifiable?
2) Whether the impugned order of the Appellate Authority dated 30.03.2021 (Annexure-A10) is valid in the eye of law?
Re. Point No. 1:
12. Statement of Articles of Charges framed against the applicant are as under:
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OA.No.170/00568/2020/CAT/BANGALORE "ARTICLE OF CHARGE-I Shri Y. Veera Pratap, Deputy Director (Finance), ESIC Medical College and Hospital, Kalaburagi has committed misconduct, in as much as, he being a member of the Technical Evaluation Committee (TEC) constituted for the purpose of evaluating the Tenders received for engagement of contractual Housekeeping Services for the said Medical College and Hospital for the year 2018-19, with mala fide intention has recommended M/s Oriental Facility as the successful bidder, ignoring the fact that, the said bidder failed to enclose proper proof/document of requisite experience as envisaged in the Clause No. 7 (5) of the Terms & Conditions of tender document, which stipulates that the bidder should have experience in Govt. Hospital/Semi Govt./PSU/Public Sector/Reputed Corporate Hospital/Organization having not less than 120 Nos. of Housekeeping personnel under one roof.
By the aforesaid act, Shri Y. Veera Pratap, has exhibited lack of integrity, lack of devotion to duty and a conduct unbecoming of a Corporation employee and thereby, violated Rule 3 (1) (i), (ii) & (iii) of the CCS (Conduct) Rules, 1964 read with Regulation 23 of ESIC (Staff & Conditions of Service) Regulations, 1959, as amended.
ARTICLE OF CHARGE-II Shri Y. Veera Pratap, Deputy Director (Finance), ESIC Medical College and Hospital, Kalaburagi has committed misconduct, in as much as, he being a member of the Technical Evaluation Committee (TEC) constituted for the purpose of evaluating the Tender received for engagement of contractual Housekeeping Services for the said medical College and Hospital for the year 2018-19, with mala fide intention, has recommended M/s Oriental Facility as the successful bidder, ignoring the fact that M/s Oriental Facility was lacking in eligibility criteria, as the said bidder failed to submit copies of 12 OA.No.170/00568/2020/CAT/BANGALORE GST/Service Tax Return for the last three years as envisaged in Clause 7(2) of the Terms and Conditions of the Tender and also ESI/EPF Returns for the last three years as envisaged in Clause No. 7 (3) of the Terms and Conditions of the Tender. By the aforesaid act, Shri Y. Veera Pratap, has exhibited lack of integrity, lack of devotion to duty and a conduct unbecoming of a Corporation employee and thereby, violated Rule 3 (1) (i), (ii) & (iii) of the CCS (Conduct) Rules, 1964 read with Regulation 23 of ESIC (Staff & Conditions of Service) Regulations, 1959, as amended."
Reply was filed by the applicant to the charge memo denying the charges levelled against him contending that the entire tendering process was done in the transparent manner with due diligence vis- a-vis prevailing rules. While doing the scrutiny, the Technical Evaluation Committee had taken utmost care in the interest of the organisation and reputation of the organisation. There was no mala fide intention or ulterior motive involved to award the successful bidder in the tender. Accordingly, sought for dropping the charges framed against him.
13. The Inquiry Officer has given the conclusion as under:
"117. In view of the foregoing discussions and oral evidence adduced by the Prosecution and defence witnesses and also based on the listed documents and admitted additional 13 OA.No.170/00568/2020/CAT/BANGALORE documents placed before me during the enquiry proceedings initiated in a Common Proceeding as against the charged officers mentioned above, I hold that -
(i) Article of Charge-I stands PROVED against each of the three COs. It is, however, held that there was no mala fide intention and the COs have not violated Rule 3 (1) (i) and 3 (1)
(iii) of the CCS [Conduct] Rules, 1964. There is only lack of devotion to duty on their part and the COs, thereby, violated Rule 3 (1) (ii) of the CCS (Conduct) Rules, 1964.
(ii) Article of Charge-II stands PROVED against each of the three COs. It is, however, held that there was no mala fide intention and the COs have not violated Rule 3 (1) (i) and 3 (1)(iii) of the CCS [Conduct] Rules, 1964. There is only lack of devotion to duty on their part and the COs, thereby, violated Rule 3 (1) (ii) of the CCS (Conduct) Rules, 1964."
Though the Inquiry Officer has given a finding that there was no mala fide intention and the COs have not violated Rule 3 (1)(i) and 3 (1)(iii) of the CCS (Conduct) Rules, 1964 and there is only lack of devotion to duty on their part and thereby violated Rule 3 (1)(ii), Disciplinary Authority held the charged officer found guilty of gross misconduct, accordingly, imposed the penalty of reduction to lower stage in time scale of pay for a period of 5 years and upon expiry of such period, reduction will have the effect of postponing the future increments of his pay.
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OA.No.170/00568/2020/CAT/BANGALORE
14. In our considered view, this is nothing but major penalty imposed on the charged officer. At the outset, the Disciplinary Authority coming to a conclusion that the charged officer is guilty of gross misconduct runs contrary to the conclusion arrived at by the Inquiry Officer. It is not forthcoming whether this misconduct is confined to Rule 3 (1)(ii) or relating to both the Articles of Charges framed against the applicant in toto. If the Disciplinary Authority is not in agreement with the Inquiry Report, it was obligatory on the part of the Disciplinary Authority to issue a notice calling for explanation from the applicant. No such exercise has been done. The crux of the charges levelled against the applicant were that no requisite documents envisaged in clause 7 (2) to 7 (5) of terms and conditions of tender document were enclosed by the successful bidder M/s Oriental Facility, Navi Mumbai. Despite such failure, the bidder was declared as technically qualified by the Technical Evaluation Committee.
15. Eligibility criteria are prescribed under Clause 7 of the terms and conditions of e-tender. The relevant clauses are extracted hereunder for ready reference:
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OA.No.170/00568/2020/CAT/BANGALORE "7. ELIGIBILITY CRITERIA:
1. xxxxx
2. The bidder must be having a valid GST and GST/ Service tax return of last 3 year.
3. The tenderer must be having registration of ESIC & EPFO and return of last 3 year.
4. The bidder must have a PAN number.
5. The bidder has to have at least three years' experiences in housekeeping service. The bidder has to have continuous experiences of rendering the similar nature of work of at least two continuous years in last 48 months (Feb-2014 to Feb-2018). The experience has to be in Govt. Hospital/Semi Govt./PSU/Public Sector/Reputed Corporate Hospital/ Organization having not less than 120 housekeeping under one roof.
H. DOCUMENTS TO BE UPLOADED:
Bidder firms which fulfil all the above eligibility conditions may upload the technical bid & price bid along with the scanned copy of following documents failing which their bids will be rejected.
1. Copy of Audited Accounts Statement showing annual turnover for the last three financial years (2014 - 15, 2015 - 16, 2016 - 17).
2. Registration / Incorporation Certificate of firm.
3. Scanned copy of EMD
4. Proof of registration of GST, ESIC, EPFO and Labour License (for the work rendered).16
OA.No.170/00568/2020/CAT/BANGALORE
5. Copies of work order as per eligibility conditions number 1 and 4 above and agreement with the relevant parties.
6. Copy of PAN No.
7. Declaration as per format at Annexure C
8. Licences/Permits from the concerned Govt.
Authorities."
16. The Inquiry Report discloses that M/s Oriental Facility produced 3 experience certificates from M/s Holy Spirit Hospital, Annexure-2 to 4 enclosed to Vigilance Investigation Report. It has been held that the Technical Evaluation Committee admitted the proofs provided by the bidder to 120 employees under one roof but the lapse pointed out is that they have not recorded the method adopted by them for verification of number of employees deployed by the bidder in the minutes of the Technical Evaluation Committee. It is observed that the uploaded tender documents of M/s Oriental Facility have been supplied to charged officers, wherein it was mentioned that they had supplied 200+8 manpower for housekeeping and allied services to M/s Holy Spirit Hospital, Mumbai for the period from 01.06.2007 to February, 2018. The tender document published dated 08.02.2018 specifically stipulates that the bidders have to submit sealed quotation (both technical and 17 OA.No.170/00568/2020/CAT/BANGALORE financial bid) in physical format and it has to be dropped in the tender box. It is not the case of the department that the successful bidder had no qualification criteria for not uploading the documents on the website. The manual copies of documents relating to eligibility criteria of the bid is not disputed. Similarly, the tender condition no. 7 (2) is that the bidder should submit GST/Service Tax returns of the last 3 years i.e. from February, 2015 to January, 2018. GST Act has come into force with effect from 01.07.2017. The penalty order does not reflect whether the physical documents submitted by M/s Oriental Facility were considered. If not considered, the reasons for non-consideration of the said documents.
17. Clause 7(2) to (5) and Clause H of the tender notification has to be read in conjunction giving a harmonious interpretation. Three separate inquiries were conducted against five officers involved in the tender decision process. A common inquiry and proceedings were engaged in respect of the 3 members of the Technical Evaluation Committee i.e. Dr. H.S. Kadlimatti, Dr. Anil Kumar Doddamani and the applicant herein. Be that as it may, the quantum of punishment imposed by the Disciplinary Authority is 18 OA.No.170/00568/2020/CAT/BANGALORE not commensurate to the charges levelled against the applicant more particularly in the light of Inquiry Report submitted by the Inquiry Officer referred to above. It is appropriate to refer to the judgment of the Hon'ble High Court of Bombay in the case of Satyendra Singh Gurjar vs Union of India & Ors. in Writ Petition No. 12403/2018 (DD: 20.12.2019), wherein it is held that mere negligence without ill motive/mala fide intent is not misconduct. In the background of the clear finding given by the inquiring authority that no mala fide intent is established, imposing the penalty of reduction to lower stage in time scale of pay for a period of 5 years and upon expiry of such period, the reduction will have the effect of postponing the future increments of his pay, is wholly perverse and cannot be sustained. On hyper-technicalities, based on presumptions and assumptions, no penalty can be imposed.
Re. Point No. 2:
18. Appellate Authority, being the quasi-judicial authority, is required to pass speaking order assigning reasons for arriving at a decision. It is well-settled that reasons introduce clarity in an order. Reasons are live links between the mind of the decision taker to the 19 OA.No.170/00568/2020/CAT/BANGALORE controversy in question and the decision or conclusion arrived at. One of the salutary requirements of natural justice is recording reasons for the decision taken. It is beneficial to refer to the judgment of the Hon'ble Apex Court in Raj Kishore Jha v. State of Bihar, (2003) 11 SCC 519, wherein the Hon'ble Apex Court observed that the reason is the heartbeat of every conclusion, and without the same, it becomes lifeless.
19. The impugned order at Annexure-A10 passed by the Appellate Authority is ex-facie cryptic and non-speaking. No reasons are recorded in arriving at the decision. Hence, such an order is void ab initio and deserves to be set aside. Merely confirming the order of the Disciplinary Authority sans making adjudication on the grounds urged by the applicant in the appeal is perverse and cannot be upheld.
20. For the reasons aforesaid, we pass the following :ORDER:
1) The order passed by the Disciplinary Authority dated 09.03.2020 at Annexure-A8 and the order passed by the 20 OA.No.170/00568/2020/CAT/BANGALORE Appellate Authority dated 30.03.2021 at Annexure-A10 are set aside.
2) The matter is restored to the file of the Disciplinary Authority, Respondent No.2, for reconsideration.
3) The Disciplinary Authority shall reconsider the matter and pass an appropriate order in accordance with law in an expedite manner, in any event, not later than eight weeks from the date of receipt of certified copy of this order.
4) All the rights and contentions of the parties are left open.
5) With the aforesaid observations and directions, OA stands disposed of. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/