Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Secretary on 25 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. No.060/01056/2015 Filed on: 18.11.2015 Reserved on: 06.05.2016 Pronounced on:25.05.2016 Coram: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) HONBLE MRS. RAJWANT SANDHU, MEMBER (A) Daljit Singh Kapur son of late Dr. Karam Singh Kapur, age 58 years, working as Additional Director General (NR-I), Central Public Works Department, Kendriya Sadan, Sector 9, Chandigarh.
.Applicant Versus Union of India through Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi 110001.
..Respondent Present: Mr. D.R. Sharma, counsel for the applicant Mr. R.L. Gupta, counsel for the respondent Order BY HONBLE MRS. RAJWANT SANDHU, MEMBER(A)
1. This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
(ii) That impugned Memorandum dated 25.08.2015 (Annexure A-1) be quashed and set-aside in the interest of justice.
(iii) That the respondents be directed to promote the applicant to the grade of Special Director General (Civil) from the date others have been promoted. Post of Special Director General (NR), New Delhi is lying vacant since 1.10.2015.
(iv) That the applicant be held entitled to consequential benefits/reliefs, in the interest of justice.
2. It is stated in the O.A. that the applicant joined the Central Public Works Department (CPWD) on 15.05.1981 as Assistant Executive Engineer (Civil). He was promoted from time to time and since 18.03.2014 is working as Additional Director General (NR-I) C.P.W.D. Chandigarh. As per provisions contained in relevant Rules called the Ministry of Urban Development Central Engineering (Civil) Group A Service Rules, 2012, the applicant became eligible for promotion to the grade of Special Director General (Civil) for the vacancy year 2015-16. It is further stated that a memorandum dated 01.12.2014 (Annexure A-8) was issued to the applicant seeking his explanation for the lapses stated to have occurred related to work that was the subject of Agreement No. 46/EE/SCD/2002-2003. This work started on 3.12.2002 and was completed in September 2004. It was alleged that the applicant failed to manage quality system and procedures. Applicant had replied to the Memo vide letter dated 22.12.2014, inter-alia, clarifying that no lapse is attributed to him. The responsibility was of officers supervising the work at site. Even otherwise, there was no poor quality of work because had it been so, the entire wall would have suffered distress. Basically the design provided by O/o Chief Engineer was not appropriate. The necessary shortfall was rectified during re-construction of the wall.
3. It is also stated that the DPC which met on 17.04.2015 found the applicant along with four other officers fit for promotion. While the Appointments Committee of the Cabinet (ACC) approved the proposal for empanelment of four officers for promotion to the grade of Special Director General (Civil) in C.P.W.D. for the vacancy year 2015-16 w.e.f. the date of assumption of the charge of the post, but the applicant was not empanelled on account of some complaints against him. The ACC directed the Ministry to resubmit the case of applicant along with Ministrys final stand on the complaints against him. Copy of letter dated 06.07.2015 of the ACC written to Ministry is annexed (Annexure A-3). The applicant represented on 13.07.2015 followed by letter dated 24.07.2015 requesting the respondent/Ministry to give suitable recommendation to ACC so that his promotion to the post of SDG is not held up. He submitted that the complaints pertained to more than 10 years ago when he was working as Superintending Engineer, Jalandhar Central Circle. During last 10 years he has been accorded two promotions i.e. to the post of Chief Engineer on 30.11.2011 and Additional Director General on 13.3.2014 and was due for retirement in December, 2016. Copies of representations dated 13.07.2015 and 24.07.2015 are annexed (Annexures A-5 and A-4). However, the respondents issued Memorandum of Charge dated 25.08.2015 along with advice dated 16.06.2015 of Central Vigilance Commission (CVC) proposing to take action under Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 charging the applicant for committing irregularities/lapses relating to work pertaining to C/o Boundary wall with barbed wire fencing including observation post cum bunker and steel gates at BSF Campus, Singhpura, Baramulla, Jammu & Kashmir, under Agreement No. 46/EE/SCD/2002-2003 when the applicant was working as Superintending Engineer (Civil), Jalanhdar, Central Circle, Jalanhdar during the period from 11.05.2000 to 21.03.2005. Since the issue pertained to the year 2002-04, vide letter dated 18.09.2015 (Annexure A-2/A), the applicant requested for certain information and documents in order to enable him to submit written statement of defence but nothing had been supplied to him till date. Applicant submitted written statement (tentative) on 12.10.2015 (Annexure A-2) on the basis of whatever recollection he could make, denying the charges leveled, justifying his conduct and the factual state of affairs concerning the issue involved therein and requesting for withdrawal of aforesaid Memorandum proposing to take action under Section 14 of the CCS (CCA) Rules, 1965. Since the respondents had not taken any action in the matter after the applicant had submitted his written statement of defence in October, 2015 and his promotion as Special Director General (Civil) was being withheld on account of this pending charge-sheet, hence this O.A.
4. In the grounds for relief, it has, inter-alia, been stated as follows:-
(i) Applicant has been made a victim when he was neither responsible for providing site data, nor responsible for issue of structural design and not to execute day to day work at site. It is clear from the Memorandum itself that the applicant has been charged with committing irregularities /lapses which are not serious in nature and such irregularities/lapses alleged are subsequent to the award of work for execution. The applicant had accepted with full diligence and followed the procedures and took reasonable care while discharging his duties. The cause of failure of the wall was defective design which was issued by the Office of the Chief Engineer (NZI) for which SE (P) was responsible and not the applicant. Role of the applicant was limited to execution of the work as per the design supplied by the competent authority.
(ii) The Memorandum has been issued at the last leg of applicants 34 years meritorious service career. Applicant has been deprived of promotion to the grade of Special Director General (Civil) whereas other similarly situated officers have already been promoted. The Memorandum of charge refers to the work pertaining to more than 11 years old period when he was working as Superintending Engineer, Jalandhar Central Circle. During last 14-15 years, applicant has been accorded two promotions i.e. to the post of Chief Engineer on 30.11.2011 and Additional Director General on 13.3.2014. Applicant has been rendering services with utmost devotion and dedication. He is due for retirement in December, 2016.
(iii) The Honble Supreme Court as well as the Honble Courts and Central Administrative Tribunals have repeatedly held that delayed charge sheet cannot and should not be sustained. The basic spirit of such judgments is that where enquiries are held at distant point of time the delinquent officer of employee is prejudiced for the simple reason he/she is not able to recollect with certainty, the events or the alleged actions or the documents and is therefore not able to set up the defence properly.
(iv) The respondents have not adhered to the time frame prescribed by the Chief Vigilance Commission. The 1st report of NIT, Srinagar is dated 23.10.2007 and 2nd Technical report is dated 1.5.2008. The case was sent for advice only vide letter dated 13.05.2015 and CVC gave advice on 16.06.2015 (Annexure A-11).
5. In the counter reply filed on behalf of the respondents, the facts of the matter have not been disputed. It has further been stated that a complaint was made by Commandant Engineer Branch, BSF vide their letter No. 119/1/2002 Engg/BSF/3825 dated 28.03.2008 to CTEO unit of Central Vigilance Commission citing the collapse of boundary wall at BSF campus, Singhpura, Baramulla. Central Vigilance Commission vide their letter No. 01.A.68.NH.R dated 11.06.2008 advised BSF to approach CPWD. BSF made a reference to Ministry of Home Affairs vide letter dated 31.10.2008 who advised them to approach Central Vigilance Commission (CVC) citing that CPWD was not responding. Central Vigilance Commission vide their OM No. 009/W&H/048/37907 dated 24.03.2009 directed CVO, CPWD (Annexure R-1) to get the work effectively inspected regarding the complaint of poor workmanship, use of substandard material and design related inadequacies. The work was inspected by ADG(NR) CPWD on 13.04.2009 and submitted the report to DG(W), CPWD on 05.05.2009 (Annexure R-2) wherein it has been concluded that i) design of wall adopted for original construction may not be ideal for specific requirement but same is safe as portion of wall reconstructed with same old design during 2005-06 are intact ii) the wall is primarily tilting/collapsing because of poor quality of construction as well as not providing the foundation width as per standard of design. Vigilance Unit of CPWD inspected the site on 04.12.2013 in presence of CPWD and BSF officers and collected sample of cement mortar used in R.R. Masonry foundation and cement mortar used in Brick Work in superstructure (Annexure R-3). These samples were tested by Sriram Institute for Industrial Research, Delhi 110007, and ratio of cement to sand in the mortar used in construction was reported between 1:7:5 to 1:31:5 (Annexure R-4), which were nowhere near to the required proportion of 1:6.
6. It is further stated that the work was inspected by Assistant Engineer (Quality Control) and observations were made regarding poor quality of work but no action was taken by the applicant on the report. As per para 54.11 (Annexure R-5) of CPWD Works Manual 2003 the applicant as a Superintending Engineer for the work was to utilize the periodical reports of AE(QA) of the Circle Office to identify the construction agency which tended to persistently produce bad quality of work. The quality of work has been poor as reported by the client (i.e. BSF). The applicant as Superintending Engineer of the work failed to take action against the contractor responsible for poor quality work and thus violated para 54.11 of CPWD Works Manual, 2003. As per para 54.9 and 54.10 (Annexure R-6) of CPWD Works Manual 2003, the applicant as Superintending Engineer for the work was to assess the quality of work and quality control procedures being adopted at site on the basis of report of AE(QA) of Circle Office and also he was duty bound to take corrective measure to rectify the defective work and to ensure the designed life of the structure. However, no action was taken by him on the report of AE(QA), Jalandhar Central Circle. As per CPWD Works Manual 2003 para 54.4 (xiv) & 54.4(xv) (Annexure R-7) the applicant, was not only to confine himself to review of progress, coordination and general matters, but was also to inspect the work regarding quality control aspects. He was also to review and sign the guard file of earlier inspection, inspection register, site order book, register of test, hindrance register etc. The applicant did not perform these tasks. As per CPWD Works Manual 2003 para 54.5 & 54.7 (i) (Annexure R-8) AE (QA) of the circle office was to inspect the work at least 3 times during the currency of work, whereas only one inspection was conducted by AE(QA), Jalandhar Central Circle on 17.06.2003 and observations were made regarding poor quality of work. In order to follow up the compliance of observations of poor quality made in the first inspection report, the applicant although being overall incharge of the work did not instruct AE(QA) of Circle Office to inspect the work further as per the frequency mentioned in CPWD Works Manual 2003 to ensure quality standards and, therefore, violated CPWD Works Manual para 54.5 & 54.7 (i).
7. When the matter came up for hearing on 06.05.2016, learned counsel for the applicant narrated the background of the matter and stated that there was much case law to support the contention of the applicant that the charge-sheet should be quashed in view of long delay in serving the same upon the applicant. The applicant had an excellent track record and the work regarding which the applicant had been charge-sheeted related to the years 2002-2003. The boundary wall had been constructed as per the design approved by the office of the Chief Engineer and damage to the same occurred when there was an earthquake in the area in 2005. The applicant had submitted his written statement in respect of charge sheet but no decision had been taken in the matter by the respondents while the applicant was suffering on account of delay in his promotion as Special DGP although the DPC had approved him for promotion. The applicant was due to superannuate in December, 2016. Learned counsel also cited judgments in the cases of Shri M.L. Tahiliani Vs. DDA 98 (2002) DLT 771, P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board (Appeal (civil) No. 4901 of 2005 decided on 08.08.2005) and State of Madhya Pradesh Vs. Bani Singh and another, AIR 1990 SC 1308 to press that since charge-sheet was served after long delay, the applicant would not be able to defend himself properly in the matter when neither the material for his defence or witnesses would be available. The charge-sheet should be quashed and the respondents be directed to give effect to the recommendations of the DPC regarding promotion of the applicant as Special Director General (Civil).
8. Learned counsel for the respondents stated that the Enquiry Officer had been appointed in Nov, 2015 and the enquiry was proceeding. It was true that there was some delay in initiating disciplinary action against the applicant but the matter came to light when the fencing of boundary wall started tilting and it was thereafter that the inspection was held and the material used for the base of the fencing was tested. Since the whole process took some time, the charge-sheet could only be served in August, 2015. In view of seriousness of the charges, it was necessary to take the matter to its logical conclusion and mere delay in serving charge-sheet could not have the consequence of disciplinary proceedings in such a matter being quashed. Learned counsel cited judgment in the case of Anant R. Kulkarni Vs. Y.P. Education Society 2013 SCT 188 in this regard wherein it had been recorded as follows:-
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, must be carefully examined, taking into consideration the gravity/magnitude of charges involved therein. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the said proceedings are allowed to be terminated, only on the ground of a delay in their conclusion. He also referred to judgments in the case of Secretary, Ministry of Defence & Others Vs. Prabhash Chandra Mirdha 2012 AIR (SCW) and Amar Singh Vs. Haryana Urban Development Authority and Others 2008 (2) SCT 437 in this regard.
9. We have given our careful consideration to the matter. A perusal of charge-sheet points to serious lapses in execution of the work relating to Construction of boundary wall with barbed wire fencing including observation post cum bunker and steel gates at BSF Campus, Singhpura, Baramulla, Jammu & Kashmir, which was executed during the period 2002-04. Considering the gravity of the charges against the applicant, we are of the view that delay in serving the charge-sheet cannot be allowed to come in the way of taking the disciplinary proceedings initiated through Memorandum of Charges dated 25.08.2015 to completion. The applicant has submitted his response to the Memorandum of Charges on 28 August, 2015 and Enquiry Officer has been appointed in November, 2015. However, keeping in view the fact that the applicant is due to superannuate from service on 31.12.2016, it is necessary that the inquiry proceedings and further action on the inquiry report should be completed within a short time frame. Hence, the respondents are directed to ensure that the inquiry proceedings are held on day to day basis so that the whole process of holding the enquiry and decision of the Disciplinary Authority in the matter can be completed within four months of a certified copy of this order being served upon the respondents. We hope and expect that the applicant will extend his full cooperation in this regard.
10. The O.A. is disposed of with these directions.
(RAJWANT SANDHU) (SANJEEV KASUHIK)
MEMBER (A) MEMBER (J)
PLACE: Chandigarh
Dated: 25.05.2016
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