Central Administrative Tribunal - Delhi
Shri Rajinder Kumar vs Delhi Development Authority on 6 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1294/2010 New Delhi this the 6th day of April, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Shri Rajinder Kumar, S/o Late Shri Rameshwar Dass, Aged 56 years, R/o 21, DDA Staff Quarters, Ber Sarai, New Delhi-110 061. Applicant (By Advocate Shri Sidharth Joshi) VERSUS 1. Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, INA Market, New Delhi. 2. Vice-Chairman, Delhi Development Authority, Vikas Sadan, INA Market, New Delhi. 3. Engineer Member, Delhi Development Authority, Vikas Sadan, INA Market, New Delhi. Respondents ( By Advocate Shri Karunesh Tandon) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
Disciplinary proceedings initiated against the Applicant by Memorandum of Charge dated 09.01.2007 culminated in penalty of reduction of pay by one stage with immediate effect in the time scale of pay with cumulative effect for a period of one year by order dated 02.09.2008 of the disciplinary authority. The statutory appeal against the said order was rejected by the order dated 22.04.2009 of the appellate authority. The Memorandum of Charge and the orders of the appellate and disciplinary authorities have been impugned in this OA.
2. The disciplinary enquiry was initiated on the basis of the following Article of Charge:
Article-1 Shri Rajinder Kumar, AE while working as AE/WD-13 during the year 2000 had recommended the bills for payment of Watch and Ward Service charges for the following works on the basis of which the payment amounting to Rs.85,268.00 was made to the contractor.
1 2 3 4 5 6 7 8 Sl.
No. Name of work Actual dt. Of compl. of main work Dt.of final bill of main work Dt.of Drawl of Suppl. Agmt. Period of watch & Ward payment Amt.of payment Ref. to MB No. Amt. Paid Prior to 2.5.97
1. 87D C/o of 2693/2714 EWS & 358/376 LIG houses in Bindapur Pkt.III. Dwarka Project SH: C/o 260 EWS & 38 LIG houses in Block-E Pt.III 22.6.94 7.8.2000 10.1.2000 22.12.94 to 21.4.2000 5,35,700 MB No. 2170 26,400.00 Nil
2.
88D C/o 540 SFS houses under Cat.II & III at Pkt.2 Sec.9 at Dwk.Ph.1 SH: C/o 184 SFS houses (92 Cat.II & 92 Cat.III) i/c int.Dev.Gr.II 2.6.97 9.8.99 20.9.99 1.12.97 to 30.4.2000 2,14,500 MB No. 811 58,868.00 NIL
1. Shri Rajinder Kumar, AE recommended and forwarded the bills for payment of the above mentioned works amounting to Rs.85,268.00 for the period prior to the date of drawl of the Supplementary Agreement and further in contravention to the EMs circular No. 509, 510 dated 2.5.97 and also circular No. 520 dated 30.3.99 which is also irregular and loss to the organisation.
2. Sh. Rajinder Kumar, while working as AE/WD-13 had prepared the bills of watch & ward service charges for the above works in spite of the fact that as per record the defects were still existing on the date of drawl of Supplementary Agreement. Thus the whole payment made was in fructuous and resulted into undue benefit to the Agencies.
3. Sh. Rajinder Kumar, while working as AE/WD-13 prepared the bills for payments of watch & ward services without verifying the facts as to whether the watch & ward services were actually provided by the Contractors in respect of these works since no such Register/Muster Rolls showing the Attendance marked, Labour Reports and Vouchers corroborating such payments exist. Also no such certificates as to the deployment of the labour based on any verification, as above, had been recorded in the bills or MBs for the works for which payment of Watch & Ward service charges had been paid.
The said Sh. Rajinder Kumar, A.E. by his above act failed to maintain absolute devotion to duty and behaved in a manner unbecoming of an employee of the authority thereby, violating sub rule 1(i) and 1 (iii) of Reguilation-4 of DDA Conduct, Disciplinary and Appeal Regulations, 1999. The inquiry authority in his report dated 17.03.2008 held that the charge against the Applicant had not been proved. The disciplinary authority recorded a note of disagreement, which was not annexed with the OA. However, the learned counsel for the Applicant has annexed a copy of the note of disagreement with the written submissions given by him with our permission. The disciplinary authority's note, disagreeing with the report of the inquiry authority has been reproduced below:
F.27(46)03/EE (Vig.)-III/Pt.
DISAGREEMENT NOTE AGAINST I.Os REPORT IN RESPECT OF SH. RAJINDER KUMAR, AE (CIVIL).
Article 1 (1) :
The I.O. has not held this charge as proved on the ground that payment for watch & ward services are covered by circular No. 509, 510 dated 2.5.97 & 520 dated 30.3.99.
The I.O.s report cannot be accepted. The payment recommended for release by the charged officer was for the period prior to date of drawl of supplementary agreement which was not in order. Also till 2.5.97 EMs circular No. 474 dated 8.11.95 was in force and according to which no payment for watch & ward charges were to be made even if supplementary agreement was drawn. The C.O. has also forwarded the bills for payment in contravention of EMs circular No. 509 & 510 dated 2.5.97 and 520 dt. 30.3.99.
Article 1(3):
The I.O. has not held this charge as proved on the following grounds:
There was no stipulation regarding number of chowkidars in any circular.
In the year 1999 when Circular No. 520 came into effect, C.O. came to know about the payment to be made for watch & ward services. It cannot be therefore, expected out of him to examine or obtain the records maintained by the contractors.
Prosecution could not produce any documents so as to establish that some theft occurred and deptt. Has incurred some loss.
The contention of I.O. is not correct. The C.O. was required to ensure deployment of watch & ward personnel through some check by the JE of some documents maintained by the contractor for the period the payment was being made.
The C.O. has failed to exercise proper supervision and made payment without verification. Since work done in this case was deployment of chowkidars as such their deployment should have been ensured by way of checking the payment vouchers etc. maintained by the contractor for the period for which payment was released.
Sd/-
(A.K. SARIN) ENGINEER MEMBER/DDA
3. The learned counsel for the Applicant has challenged the impugned orders on the following two grounds:
(a) that the orders of the disciplinary and appellate authorities are totally non-speaking; and
(b) that the note of disagreement is based on wrong interpretation of circulars number 474, 509, 510 and 520, issued by the Engineering Member from time to time.
4. Before we may consider the arguments of the learned counsel for the Applicant, it would be useful to consider the various circulars, which have formed the basis of the report of the inquiry authority as well as the note of disagreement.
5. Circular number 474 is dated 08.11.1995. It is on the subject of drawing of supplementary agreements for housing projects. On the subject of the watch and ward of the work, the following instructions are given in the circular:
"3. During the operation of the Supplementary Agreement the watch and ward of the entire work, including the completed portion of the work of the Main Agreement shall continue to remain the responsibility of the contractor. The contractor shall also be liable to make good any loss or damage to the executed items of Main Agreement. The contractor shall not be paid anything extra on this account."
Another circular number 509 was issued on 02.05.1997 superseding the circular number 474 dated 08.11.1995. In the circular the provision for the watch and ward was modified as follows:
"8 The contractor's would be entitled for the payment of watch and ward/service charges etc during the operation of the Supplementary Agreement in respect of the existing contracts also as per the pre-decided rates to be worked out on the basis of the norms/guidelines separately issued vide circular No. 510 dated 2.5.97."
There has been further elaboration in Annexure-A to circular number 509, which has been extracted below:
"4. During the operation of the Supplementary Agreement the watch and ward of the entire work including that completed under the Main Agreement (as per Schedule-A) shall continue to remain the responsibility of the contractor notwithstanding the fact that the Main Agreement worked has been finalised. The contractor shall be paid extra on this account as per quoted/pre-decided rates. This clause shall, however, be operated only after completing all applications under Main Agreement irrespective of the specific provision contained in Schedule-B of the Schedule of Items.
"5. During the operation of the Supplementary Agreement as well as the maintenance period thereafter, the contractor shall be liable to make good any loss or damage to the work executed under both the Main as well as the Supplementary Agreement for which nothing extra will be payable to the contractor."
The circular number 510 was also issued on 02.05.1997, which provided guidelines for the operation of Supplementary Agreement in respect of watch and ward/service clause. The circular has been reproduced below:
According to the instructions issued vide Circular No. 509 dt.2.5.97 regarding operation of Supplementary Agreement, contractors are required to be paid for watch and ward/service charge etc. for the operation of Clause-2 (j) contained therein. For drawing up Supplementary Agreement in respect of running contracts, in order to maintain uniformity in the operation of this clause, following guidelines are issued to be followed judiciously by the Tender Accepting Authority (Chief Engineer will be the final Authority even where the tenders were accepted with the prior approval of WAB):-
1. On an average for and upto a Housing Pocket of 150 SFA/MIG Houses or 200 LIG/EWS Houses, a payment of Rs.6600/- per months may be considered reasonable.
For every additional 50 houses or so, additional payment @ Rs.1100/- per months may be considered reasonable.
3. Nothing extra will be permitted for T&P and sundries required for watch and ward operation.
The above guidelines are for normal locations and for the general guidance. The exceptionally small pockets or small buildings, the Tender Accepting Authority shall take a judicious view the totality of the circumstances in deciding the above charges. Similarly for the pockets located in areas vulnerable to unscrupulous activities extra cost may be suitably permitted on judicious basis. Circular number 520 was issued on 30.03.1999, which clarified the instructions of the Engineering Member issued under circulars 509 and 510. The circular has been quoted in full below:
Certain clarifications have been sought to standing instructions No. 509 dt. 02-05-97 in respect of applicability of the payment of watch & ward charges for the intervening period i.e. from the date of closure of the Main Agreement till the signing of the Supplementary Agreement by the contractors in respect of old contracts wherein condition of the Supplementary Agreement does not form part of the contract. The matter has been examined in detail and it has been decided that watch & ward charges are payable for the intervening period subject to the following:-
The contractors have been continuing to provide watch & ward services during the said period.
The contractors entering into the Supplementary Agreement for the same, including finishing items, fixing of fittings etc. required to be executed at the time of handing over of the possession of the flats.
The charges would be payable w.e.f. the date when all liabilities/obligations of the main agreement including defect liability period had been fulfilled and duly certified by the Engineer-in-charge and accepted by the next higher Authority.
In addition, the contractors shall be liable to make good any loss or damage to the work already executed and to be executed under the Supplementary Agreements for which nothing extra shall be payable to the Contractors.
Adherence to the other guidelines as contained in Circular No.509 dt. 02-05-97 and 510 dt. 02-05-97.
6. In respect of the two works mentioned in the Article of Charge, the date of completion, date of expiry of maintenance period and the date of payment of the Main Agreement are as follows:
(i) 22. 06.1994, 21.12.1994 and 07.08.2000
(ii) 02.06.1997, 01.12.1997 and 09.08.1999 The inquiry authority, in his findings has observed that the relevant Supplementary Agreements were drawn up on the basis of the proposals made by the Executive Engineer and duly approved by the Chief Engineer/Superintending Engineer. The charged officer had no role to play so far as entering into agreements/supplementary agreements are concerned. The inquiry authority has further observed that the payment for watch and ward services was covered by the circulars 509, 510 and 520. Circular number 509 was issued for payment of watch and ward services by superseding the circular number 474. Circular number 510 was issued giving guidelines for operation of Supplementary Agreements in respect of watch and ward services. Circular number 520 clarified instructions issued under circulars 509 and 510. The following part of circular 520 has been quoted in the inquiry report:
"Certain clarification have been sought to Standing Instructions No. 509 dated 2-5-97 in respect of applicability of the payment of watch & ward charges for the intervening period i.e. from the date of closure of the Main Agreement till the signing of the Supplementary Agreement by the contractor is in respect of old contracts wherein condition of the Supplementary Agreement does not form part of the contract. The matter has been examined in detail and it has been decided that watch & ward charges are payable for the intervening period subject to the following"
The inquiry authority has then inferred that the perusal of circular number 520 would reveal that payments for watch and ward services for the intervening period for old contracts were admissible. Further, according to the inquiry authority the payment would, however, be made with effect from 02.05.1997, when circular number 509 was issued superseding the circular number 474. He has opined that the works which had already been closed should also be included in old contracts. In this context the statement of PW-1, Lalit Mohan, Executive Engineer has to be adverted to. In the cross-examination the attention of the witness was drawn to the circulars number 509 and 520. He was asked whether the main agreements which had been closed by recording completion certificates before 02.05.1997 could be called old contracts. The answer of the witness was in the affirmative. The inquiry authority also observed that in the notes proposing the supplementary agreements, there was a mention of circular 520. From this it was inferred that:
"Therefore, in the wisdom of the senior officers the payments for watch & ward services were permissible and AE being the lowest rung official in the system had complied with the S/A entered into by the EE."
The references to the following passage in the Supplementary Agreement dated 03.11.2000 are as follows:
"As per para 8 of EM's circular No. 509 dated 2/5/97, it is clearly ordered that in the existing old agreements of housing and similar projects, possibility of drawing up of supplementary agreement as per or defied instructions, duly approved by the W.A.B. given in that circular No. 509 dated 2/5/97 may be explored. Accordingly, the contractor Sh. Madan Lal Maggon, has approached and given their consent for executing Supplementary Agreement and also submitted their undertaking that they are liable to make good any losses or damages to the work already executed under original Agreement No. 2/EE/WD-
13/DDA/93-94 and Supplementary Agreement (being drawn) and also shall not claim anything extra from DDA except watch and ward charges. On the basis of undertaking of contract and EM circular No. 510 dated 2/5/97 on the subject of watch and ward charges payment, this division proposes to draw the Supplementary Agreement. According to circular No. 510 dt 2/5/97 duly approved by W.A.B., Chief Engineer is the final authority to decide the watch and ward/service charges for existing contracts. Regarding intervening period payment from the date of closure of main agreement till the execution of Supplementary Agreement, now clarification have been issued by EM, DDA under circular No. 520 dated 30/3/99 that the watch and ward charges are payable for the intervening period subject to certain conditions mentioned in the circular ibid. Accordingly, contractor Sh. Madan Lal Maggon, has fulfilled the required conditions and thus entitled for watch and ward charges for intervening period and also the period proposed to be mentioned in the Supplementary Agreement and to the extended period is required."
From the above analysis the inquiry authority came to the conclusion that the charged officer was not responsible for recommending payments for those old contracts. As regards the charge that the charged officer recommended and forwarded the recommendation for payment without verifying whether watch and ward services were actually provided continuously by the contractor in respect of those works since no register or muster roll showing the attendance of the staff was produced, the inquiry authority has quoted the provisions of circular 510, which provides for payment for watch and ward services based on the number of houses in a particular housing pocket. The said circular has been quoted above. The inquiry authority has observed that there is no mention of the number of security guards to be deployed by the contractor in the aforesaid circular. The number of staff to be deployed for security purposes has also not been specified in circular 520. He has also observed that the Applicant came to know about the payment for watch and ward services in 1999 only when the circular 520 was issued. It was, therefore, not practicable or possible for him to obtain the details of the number of persons deployed by the contractor for watch and ward services. It has also been observed that the Department could not produce any documents to show that it suffered any loss during this period because of theft in the houses constructed by the contractor. The inquiry authority has reiterated that:
"So far[as] checking of the muster roll, attendance register etc. are concerned these are otherwise not required keeping in view that the payments authorised vide circular No. 520 did not mention about number of watch & ward staff to be provided by the contractor for entitlement of payment. Again the payment as indicated in the circular No. 510 is for a particular number of houses in a pocket and here also no indication about number of staff to be deployed has been given."
It is on the basis of this exhaustive reading of the various circulars that the inquiry authority exonerated the Applicant.
7. The learned counsel for the Applicant would further contend that he acted only on the interpretation of circulars issued from time to time by the Engineering Member and that there was no wilful intention or mala fides on his part to give any undue benefit to the contractor. In such view of the matter the action of the Applicant could not be construed as misconduct. He would rely on Union of India and Others V. J Ahmad, AIR 1979 SC 1022.
8. The Respondents, on the contrary, would reiterate that the payment was made without verifying whether the contractor had deployed the watch and ward staff. There was no document in existence to verify the fact of deployment of security staff by the contractor. The charged officer, in view of his negligence in verifying the facts, would be guilty of giving undue benefit to the contractor. It has further been contended that the circular number 474 dated 08.11.1995 was in operation up to 02.05.1997, when it was superseded. Therefore, it is contended that the Applicant has wrongly paid for the watch and ward staff from 22.12.1994.
9. We have given our utmost consideration to the rival contentions and have gone through the record placed before us minutely.
10. The note of disagreement given by the disciplinary authority is in our considered opinion not entirely correct. It is not correct to state that the charged officer could not have recommended release of payment for watch and ward staff prior to the drawing up of the Supplementary Agreement. The circular 509 provides for payment of watch and ward services during the operation of Supplementary Agreement. Further clarification given in circular 520 provides for payment of watch and ward staff from the date of closure of the Main Agreement till the signing of the Supplementary Agreement by the contractor in respect of the old contracts. We have also quoted from one of the Supplementary Agreements, where it has been clearly mentioned that under the circular 520 payment of security staff is to be made. The disciplinary authority in his note of disagreement has not even clarified how the proposal for payment is contrary to the instructions issued in circulars 509 and 510. As regards the charge that the Applicant had not verified the number of security staff deployed by the contractor, the disciplinary authority has quoted the reasons given by the inquiry authority for rejecting the charge and thereafter only stated that the contention of the inquiry authority is not correct. It has been stated that the charged officer was required to ensure deployment of watch and ward personnel through some check by JE of some documents maintained by the contractor for the period for which payment was made. This statement is too vague and not at all supported by any argument, whereas the inquiry authority has given cogent reasons for rejecting the charge. The Applicant had given detailed representation against the note of disagreement. The disciplinary authority has not considered any of the arguments made by the Applicant and issues raised by him in his representation. Likewise, the appellate authority has also not considered any of the contentions of the Applicant in his appeal against the order of the disciplinary authority.
11. The only charge, which could be proved against the Applicant could be that in the contract mentioned at serial number 1 in the charge sheet, he made the payment from 22.12.1994 to 21.04.2000, whereas circular number 474 was applicable till 1997. This also becomes doubtful because of wording of the Supplementary Agreement quoted above. However, this point has to be adjudicated by the disciplinary authority.
12. We have quoted the relevant circulars in detail in the preceding paragraphs. The inquiry authority has given logical explanation for his decision to exonerate the Applicant after exhaustive analysis of the circulars and the Supplementary Agreement. The disciplinary authority has not been able to contradict any of the conclusions of the inquiry authority on the basis of the circulars, except to the limited extent mentioned above. Merely stating that the inquiry authority's conclusions are wrong would not be sufficient. The disciplinary authority had to give sufficient reasons to justify his disagreement with the inquiry authority. There has been absolutely no consideration of the points raised by the Applicant against the note of disagreement. It is very clear from the reading of the circulars that payment of watch and ward staff between the conclusion of the Main Agreement and drawing up of the Supplementary Agreement was permitted by the circulars and that the circulars provided flat rates based on the number of houses in the housing pocket for calculation of the amount to be paid for watch and ward staff. Nowhere has it been mentioned that the payment would be based on the actual number of watch and ward staff deployed by the contractor. We are of the considered opinion that the disciplinary authority has not been able to meet with the arguments of the inquiry authority in his inquiry report, exonerating the Applicant and the contentions raised by him in his representation against the note of disagreement except as regards payment between 1994 to 1997, for the Watch and Ward Staff. The appellate authority has also passed an order which is completely silent on the issues raised by the Applicant.
13. In the light of the above discussion the order of the disciplinary authority and the order of the appellate authority cannot sustain. The impugned orders are accordingly quashed and set aside. The case is remanded to the disciplinary authority to reconsider the whole issue to the limited extend of payment made for the watch and ward staff from 1994 to 1997 keeping our observations in mind and decide the matter by passing a speaking order. No costs.
( L.K.Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/