Central Administrative Tribunal - Delhi
Vinod Kumar Asol vs Union Of India on 8 December, 2010
Central Administrative Tribunal Principal Bench O.A. No. 2745/2009 New Delhi, this the 8th day of December, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Vinod Kumar Asol, Executive Engineers (D) IV, C.P.W.D., Central Designs Organization, Room No.334, A Wing, Nirman Bhawan, New Delhi. Applicant By Advocate: Mrs. Rekha Palli with Mrs. Amrita Prakash. Versus 1. Union of India Through Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi. 2. The Central Public Works Departments, Through its Director General, Nirman Bhawan, Delhi-110001. Respondents By Advocate : Shri R.N. Singh for Shri R.V. Sinha. O R D E R By Honble Mrs. Meera Chhibber, Member (J) :
Applicant has challenged Memorandum dated 14.10.2008 and initiation of departmental enquiry in his case.
2. It is submitted by the applicant that he was working as Executive Engineer in CPWD at Roorkee where 7 districts were under him and 15 projects were going on. On 29.6.2004, he detected some of the columns in a project were defective, therefore, he not only informed the senior officers about it but got them dismantled and reconstructed also. It was, in fact, noted by the senior officers in their letters that it was Junior Engineer (hereinafter referred to as JE) and Assistant Engineer (hereinafter referred to as AE) who were bringing bad name to the organization, as such departmental enquiry should be initiated against them, yet vide letter dated 13.7.2005 explanation was called from the applicant as to why disciplinary action should not be initiated against him(page 31). Applicant gave his reply on 29.8.2005 stating therein that he had only passed the running bills in a routine manner. Since he found the pillars to be defective, he had recommended for dismantling and reconstructing the same. Thereafter, no action was taken against the applicant. He, therefore, believed that his reply had been accepted by the authorities. However, to his utter surprise, after over a period of 3.1/2 years, applicant has been served with a chargesheet dated 14.10.2008 which has now been challenged by the applicant on amongst others the following grounds:-
(i) Inordinate delay.
(ii) CVO had no jurisdiction to issue the charge sheet as no vigilance angle was involved. The matter should have been decided by the administrative authority, i.e., the ADG.
(iii) Applicant is being discriminated against as no action has been taken against the JE who was actually at the site and under whose supervision the pillars were constructed, while departmental enquiry has been initiated against the applicant.
(iv) His other works have been appreciated by none other than the IIT, which shows that applicant was a sincere worker and was not responsible for the weak construction of pillars. He is demoralized because action has been taken against him, when he had himself informed the authorities. Even otherwise, he would be prejudiced by this delayed action of the respondents as he is on the verge of promotion.
3. Counsel for the applicant has relied on the following judgments:-
(i) Union of India and Another Vs. Vineet Ohri reported in 2010 AD (DELHI) 60.
(ii) Union of India Vs. Shri V.K. Sareen reported in 2009 VI AD (DELHI) 101.
(iii) Himanshu Pandey Vs. U.O.I decided on 19.2.2010 by Central Administrative Tribunal, Principal Bench, New Delhi (OA No. 1844/2009).
He has prayed that the OA may be allowed.
4. Respondents have opposed this OA. They have stated no case is made out for interference at this stage the OA is premature. It has repeatedly been held by the Honble Supreme Court that in disciplinary matters courts should not interfere at the stage of charge sheet. Court can interfere only in three eventualities:-
(i) When the charge sheet is not issued by the competent authority;
(ii) it is issued due to mala fides; and
(iii) on the basis of records, no case is made out for misconduct.
In the instant case, neither it can be stated that it is a case of misconduct nor mala fides have been alleged by the applicant against any person nor it can be stated that the charge sheet was issued by an incompetent authority because it is issued by the Government of India. Even otherwise, the charge sheet has been issued after due application of mind at the highest level, which is evident from the details given in the counter-affidavit.
5. They have explained that in 2004 it came to their notice that the pillars in a project were not casted correctly. Accordingly, show cause notice was given to the applicant on 13.7.2005. Applicant gave his reply, which was considered by the competent authority and since it was a case of Group A officer, the matter was referred to the CVC who opined that action be taken against all the 4 officers including the Executive Engineer, Assistant Engineer, Superintending Engineer and another Assistant Engineer. Accordingly, charge sheet has been issued to all the above said officers. They have also stated that the poor quality of work had been highlighted by the senior officers (Chief Engineer) of this department, who are technical expert and more experienced. The responsibility for quality of RCC works, laid with the Assistant Engineer and the Executive Engineer. They have further explained that the Project Monitoring Committee of IIT, Roorkee during site visit on 4.6.2004 had criticized the quality of concrete work being executed by the CPWD and also mentioned in their report that as per IS 456-2000 only 28 compressive strength of concrete should be used as acceptance criteria and this should be strictly adhered to. On 29.6.2004 Professor N.M. Bhandari, PCE & Convener, Monitoring Committee, IIT Roorkee, observed that one edge column in 2nd storey was being demolished and asked from Executive Engineer the clarification regarding reasons for demolition. At that stage, applicant was told to get Non Destructive Testing (NOT) of adjoining structural members after demolition is over. It was in these circumstances the Superintending Engineer, Dehradun Central Circle, vide his letter dated 20.8.2004 asked the Executive Engineer, RCD, to explain why test results of concrete for the columns casted on 7.5.2004 and 11.5.2004 were not recorded in the test register. In spite of it, applicant made no attempt to check the test results of cubes which were sent to CPWD Lab, Dehradun. Executive Engineer failed to direct the contractor to install cube testing machine at site as per terms of the agreement and he did not bother to check test results of concrete before releasing payments to the contractor. They have thus stated that all these things would have to be looked into by the Inquiry Officer during the enquiry.
6. They have further explained that within 3 years from the reply given by the applicant, not only charge sheet was given to the applicant but I.O. has also been appointed and letter has also been issued by the Inquiry Officer to the applicant, therefore, it cannot be stated that there was delay in initiation of enquiry or taking it to a logical conclusion.
7. Counsel for the respondents placed reliance on the following judgments:-
(i) Union of India and Another Vs. Kunisetty Satyanarayana reported in AIR 2007 SC 906.
(ii) Union of India Vs. Upendra Singh reported in JT 1994 (1) SC 658.
(iii) Union of India and Another Vs. Ashok Kacker reported in 1995 Supp (1) SCC 180.
(iv) Dy. Inspector General of Police Vs. K.S. Swaminathan reported in 1996 (11) SCC 498.
(v) Government of Andhra Pradesh and Others Vs. V. Appala Swamy reported in 2007 (14) SCC 49.
8. He thus prayed that in terms of the judgment in V. Appala Swamys case, if at all any prejudice has been caused to the applicant, he should place the same before the Inquiry Officer. The OA may accordingly be dismissed.
9. We have heard both the counsel and perused the pleadings as well.
10. Perusal of the charge sheet shows it was issued by the Government of India, Ministry of Urban Development, through the DG (W), CPWD Shri Virendra Sharma, CVO, therefore, we find no merit in the contention of the counsel for the applicant that CVO had no jurisdiction to issue this charge sheet because a decision to initiate action against the applicant was taken at the highest level and the charge sheet and order was issued in the name of the President by the Under Secretary to the Government of India through the DG (Works), CPWD, therefore, the first contention of the applicant that charge sheet has been issued by the CVO is rejected.
11. Counsel for the applicant strenuously argued that it is very demoralizing for a person to go through the disciplinary proceedings when he has not committed any misconduct. On the contrary, it was he, who had pointed out the weak structure of the pillars and had got it demolished and reconstructed, therefore, there is no justification to initiate action against him while leaving the Junior Engineer, who was present on the site all the time and under whose supervision the construction was being carried out. He also submitted that applicant is being discriminated against as no action has been taken against the concerned JE. We have gone through the reply filed by the respondents and find that though initially it was written by the officers that it is the AE and the JE who were responsible for bringing bad name to the organisation but on detailed examination of the matter at the highest level, they came to the conclusion that in the given circumstances, the responsibility laid with the Assistant Engineer, Superintending Engineers and the Executive Engineer, therefore, departmental enquiry was initiated against all the 4 officers. If no action has been taken against the JE, it does not absolve the applicant of his misconduct, if any, as alleged against him by the department. In any case, it is always open to the applicant to take this contention before the IO or when the final orders are to be passed in the case. This is no ground for interference by the Tribunal at the stage of charge sheet. After all, the very object of holding departmental enquiry is to find out the truth, therefore, if applicant feels very strongly that he has not committed any misconduct or it is he who had pointed out defects to the higher authorities, he can always take this defence before the IO. We cannot term it as a case of no misconduct at the threshold as that would amount to judging the correctness of the charges. The charges levelled against the applicant are as follows:-
ARTICLE-I The said Shri V.K. Asol, Executive Engineer failed to check the quality of RCC columns at level 3 to level 4 and level 4 to level 5. Twenty four numbers columns at level 3 to level 4 and five numbers columns at level 4 to level 5, had to be recast/repaired due to substandard quality. He thus acted in contravention of Paras 5.2.1, 54.2.1, 54.2.2, 54.4 (vi), 54.4 (xvii), 54.4. (xix) and 54.30 of CPWD Works Manual, 2003, terms and conditions of the Agreement, and CPWD Specifications.
ARTICLE-II The said Shri V.K. Asol allowed payment for RCC of substandard columns in 4th R/A bill paid to the contractor on 11.6.2004, without ascertaining quality, thereby contravening Para 9.3. of CPWD Works Manual 2003, CPWD Specification, and the terms and conditions of the Agreement.
ARTICLE-III The said Shri V.K. Asol failed to ensure execution of work as per the terms and conditions of the Agreement. He allowed execution of work without establishment of field laboratory at site by the contractor. He sent concrete cubes for test at CPWD Laboratory, Dehradun, whereas, as per the terms of the Agreement, 90% of cube tests, shall be conducted at the laboratory established at the side by the contractor, thereby contravening the terms and conditions of the Agreement, as well as Paras 54.2.1., 54.4 (vi) and 54.4. (xix) of CPWD Works Manual, 2003.
After all the very object of holding an enquiry is to afford an opportunity to the delinquent to defend himself. These charges would have to be looked into by the IO based on the evidence which would come on record, therefore, we cannot look into the correctness of the misconduct at this stage.
12. At this juncture, it would be relevant to refer to the judgment of Honble Supreme Court in the case of Union of India and others vs Upendra Singh reported in 1994 (3) SCC 357, it was held as under:
In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into.
13. In the case of Union of India and Another vs Ashok Kacker reported in 1995 Supp (1) SCC 180, it was held as under:
The respondent has full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf. This was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet. The appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon.
14. Similarly in State of Punjab and Others Vs. Ajit Singh reported in 1997 (11) SCC 368 it was held as under:-
the High court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High court. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever.
15. It is thus settled position that we cannot go into the correctness of the charges at this stage. Applicant would have the opportunity to defend himself before the I.O., therefore, this contention is rejected.
16. Counsel for the applicant further submitted that charge sheet is liable to be quashed on the ground of inordinate delay. On the question of inordinate and unexplained delay Honble Supreme Court has held as under in State of Andhra Pradesh Vs. N. Radhakishan reported in JT 1998 (3) SC 123:-
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. 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 proceedings. 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. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
17. Perusal of the above judgment shows that court has to examine the facts of each case and see whether delay has been explained and whether any prejudice is caused to the employee. It is also required to see how much disciplinary authority is serious in pursuing the charges against the employee. Moreover, nature of charge, complexity and the reason of delay has also to be examined.
18. In the case of Dy. Inspector General of Police Vs. K.S. Swaminathan reported in 1996 (11) SCC 498 it was held as under:-
It is settled law by a catena of decisions of this court that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the tribunal or the court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge-sheet supplied are required to be looked into by the court or the tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct. The tribunal, therefore, was totally unjustified in going into the charges at that stage. It is not the case that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer. Therefore, the tribunal was totally wrong in quashing the charge memo.
19. From above, it is clear that there cannot be a straight jacket formula in quashing the charge sheet on the ground of inordinate delay. Each case has to be decided on the given facts and after examining the pros and cons of the case. In the instant case, the incident relates to the year 2004. It came to the notice of the department that there had been some poor quality of construction by the CPWD in the year 2004. Within few months respondents called the explanation of the applicant by giving him show cause notice dated 13.7.2005. Applicant gave his reply which was considered by the authorities at the highest level to find out who were responsible for the poor qualify of work and for releasing the payments etc. etc. After they took a decision, the matter had to be referred to the CVC as it involved a Group A Officer, therefore, matter was referred to the CVC who opined that departmental enquiry should be initiated against all the officers including applicant. This would have taken some time. Within 3.1/2 years there-from, charge sheet was issued to the applicant on 14.10.2008. The Inquiry Officer was appointed and he also issued a letter to the applicant, which is evident from the documents placed on record by the applicant himself. All this clearly shows that it cannot be said to be a case where there was either inordinate delay in initiating the enquiry or there was no will to complete the enquiry. In fact, applicant had himself filed the present OA on 24.9.2009 and had obtained an interim order on 25.9.2009 restraining the respondents from proceeding further in the impugned memorandum, therefore, from that stage onwards applicant is himself responsible for not letting the enquiry be completed. Not only this, it is also relevant to note that in his reply to the Memorandum dated 14.10.2008 applicant had himself requested that an IO may be appointed so that enquiry may be completed (page 47), therefore, he should not have any objection if IO has been appointed.
20. As far as prejudice is concerned, it has been held by the Honble Supreme Court in the case of Government of Andhra Pradesh and Others Vs. V. Appalaswamy reported in 2007 (14) SCC 49 that it should be shown to the IO. In the said case the question before Honble Supreme Court was whether High Court was justified in quashing the disciplinary proceedings and issuing a direction to the applicant to pay all pensionary benefits only on the ground of delay in concluding the enquiry. It was held by Honble Supreme Court as follows:-
So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, no hard-and-fast rule can be laid down. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer. The High Court did not consider any of the aforementioned aspects. Therefore, the impugned judgment of the High Court was not sustainable.
Therefore, even if applicant states any prejudice has been caused to him, it has to be stated before the Inquiry Officer, in view of the law laid down by the Honble Supreme Court. This contention also is premature at this stage.
21. The judgments of the Tribunal or of the Honble High Court of Delhi relied upon by the counsel for the applicant would not hold the field nor would advance the case of the applicant as each case has to be seen in the given facts and in view of the law settled by the Honble Supreme Court of India.
22. Since Inquiry Officer has already been appointed in this case, the only direction we can give to the respondents is that they shall complete the enquiry within a period of 3 months from the date of receipt of a copy of this order by holding the same on day to day basis so that there is no further delay in completing the enquiry provided applicant co-operates with the Inquiry Officer.
23. With the above direction, this OA stands disposed of. No order as to costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh