Central Administrative Tribunal - Delhi
Shri V.K. Gulati vs New Delhi Municipal Corporation on 17 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH T.A. No.1473/2009 Order Reserved on 12.07.2013 Order Pronounced on: 17.01.2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Shri V.K. Gulati Son of Shri C.P. Gulati R/o A-286, Kalkaji, New Delhi-110019. -Applicant (By Advocate: Shri Rajesh Katyal) Versus New Delhi Municipal Corporation Through its Chairman, Palika Kendra, Sansad Marg, New Delhi-110001. -Respondent (By Advocate: Shri Arun Bhardwaj) O R D E R Mr. Sudhir Kumar, Member (A):
This case was first filed by the applicant as a Writ Petition before the Honble Delhi High Court as Civil Writ Petition No.4672/2002, and Rule D.B. was issued by the Honble High Court on 05.08.2002. Later on, by the orders of the Honble High Court dated 16.09.2009, the case was transferred to this Tribunal, and registered as TA No.1473/2009. At one stage, on 10.01.2012, a submission was made at the Bar that the matter was under re-consideration of the respondents, because of which the final arguments were deferred, but later, on 10.04.2012, it was informed that the case of the applicant had been found to have lacked merit, and had been rejected up to the highest level in the respondent-authority, and the matter was not being reconsidered now. Therefore, the case was listed once again for hearing of arguments. At one stage, the learned counsel for the respondents had been asked to report about the action taken in respect of one Shri A.K. Goyal, against whom also the departmental proceedings had been initiated simultaneously with the applicant, though there were no joint disciplinary proceedings. It was reported that the same punishment of reduction in pay by one stage for a period of one year was imposed upon Shri A.K. Goyal also, and that he did not prefer any appeal and in the case of Shri A.K. Goyal, that punishment had become final.
2. The case was argued in parts, and at one stage learned counsel for the applicant submitted that he had engaged senior counsel for the remaining part of the arguments. Finally the case was argued and reserved for orders on 12.07.2013.
3. The whole case had originated because sometime in the month of January 1991, a proposal was mooted by Health Department of the respondent-NDMC, through its Medical Officer of Health (MOH), for procurement of garbage compactors, and sewer cleaning machine etc. The proposal was for procuring the following equipments:-
Qty. Estimated cost
1. Garbage Compactor (14 cubic meter) 4 Nos. Rs.27 Lacs
2. Mini compactor (6 cubic meter) 5 Nos. Rs.18 Lacs
3. Sewer Cleaning Machine 1 No. Rs.15 Lacs
4. De-watering Pumps 4 Nos. Rs. 2.20 Lac
4. In that very proposal, it was further proposed to form a Purchase sub Committee, as the time available in the current financial year was very short, which proposal was approved, and a Committee was formed, consisting of the following persons, with the applicant of the present TA being at Sl. No.4 thereof:-
1. MOH or his representative (i.e. person who had moved the proposal)
2. CE (Elect) or Additional CE (Elect)
3. Sh. A.K. Goyal, Executive Engineer (Auto)
4. Sh. V.K. Gulati, Asstt. Engineer (Compost Plant)
5. Representative from Finance.
5. It was noted in the proposal itself that Sl. No.3, Shri A.K. Goyal, Executive Engineer (Auto), will arrange for calling of tenders for purchase of equipments, while the MOH had in the meanwhile already invited tenders by issuing a press notice in this regard. The Financial Advisor of the respondent-NDMC had already approved for calling of short notice tender, and for recourse being taken to fall back upon the two competitors for the similar equipments of the previous years M/s. Hydramach Engineers Pvt. Ltd. and M/s. Airtech Pvt. Ltd. Since wide publicity was given to the competitors in English and Hindi Newspapers, the tenders were received in sealed double covers, and financial bids in the second cover, and opened on 31.1.1991.
6. In the presence of the entire Committee formed for the said purpose, and the representatives of the bidders at that time, only the first cover containing the technical specification conditions and other relevant documents of both the companies were opened. The second covers containing financial bids were to be opened only in case both the companies fulfilled the technical conditions after their technical tenders were evaluated by the Committee. The relevant note was prepared by the accounts side, and sent to the Executive Engineer (Auto) Shri A.K. Goyal to go through the technical specifications note, and to submit the recommendations through the Medical Officer of Health, who in turn later forwarded the same to the applicant also. In the Note regarding technical specifications prepared by the E.E (Auto), the technical specifications and other conditions of the tenders of the two parties were brought out and placed before the Committee for its consideration, and at the meeting held on 05.02.1991, it was decided to hold a follow up meeting in the room of the Administrator on 06.02.1991, wherein the bidders could also be called, and some clarifications as noted in the Minutes of the Committee meeting of 05.02.1991 could be sought from each of the bidders.
7. At the meeting on 06.02.1991, both the firms were informed about the decision taken by the Committee in its meeting held on 05.02.1991, and the details of the equipments being offered by them were discussed with them threadbare, and the parties agreed to submit their revised offers in sealed covers by 08.02.1991 in the room of MOH, which was also done. M/s Hydramach had given its bid for one of the models, while M/s Airtech had given bids for two models, i.e., equipment of two types. At the meeting held on 08.02.1991, when the fresh sealed covers of both the bidders were opened, and it was found by the Committee that the bids of both the firms, as per the specifications/requirements of NDMC, it was decided that the financial bids in respect of the tenders for 14 cubic meter and 6 cubic meter capacity garbage compactors of both the firms should be opened. Ultimately the sealed covers containing the financial bids were opened in the Chambers of OSD, at which, besides the other members of the Committee, Accountant (HG) was also present, along with the representatives of the tenderers. Later on, the comparative chart of the comparative bids was prepared by the Accountant (HG), on the basis of which the Committee found that some clarifications were essential before a final decision could be taken regarding supply of the machinery concerned. It was also proposed at that point of time on 12.02.1991 that both the firms be called for negotiations in order to obtain clarifications/confirmations, which had been proposed to be sought by three persons, the Accountant (HG), the applicant before us, and the E.E. (Auto) Shri A.K. Goyal.
8. Accordingly a meeting was held on 13.02.1991, and in the meeting of the said Committee, it was decided to award the work to M/s. Airtech Pvt. Ltd. for supply of their old Model 4R, at their quoted rate at Rs.2,75,000/- each + taxes, as the said rate appeared to be the lowest. However, before awarding the work, it was decided that some clarifications be sought only from M/s. Airtech Pvt. Ltd. Thereafter, the file was sent by the Medical Officer (Health) to the Financial Advisor of NDMC, who opined that since M/s Hydramach, the other bidder, had agreed for operation and maintenance of their vehicles for a period of 2 years without any extra costs, and since the tender was only for supply of equipments, the Committee had decided that the quotation of M/s Hydramach for supply, and operation and maintenance of 2 years was not fully in consonance with the tendered document, and accordingly the M/s Hydramach was asked to give a fresh offer, which they gave, by reducing the price of their equipments by Rs.30,000/- each. The Financial Advisor, however, advised that M/s Airtech may also be invited for negotiations, and be asked to give an offer with the same facility of operation and maintenance also, as offered by M/s Hydramach, and thereafter the two tenders should be re-evaluated by the Committee/sub-Committee.
9. After this, the MOH constituted a new negotiation Committee, consisting of the Financial Advisor, the OSD, the Law Officer, and all other existing members of the earlier Committee, under the Chairmanship of the Financial Advisor. In the meeting of this enlarged Committee held on 26.02.1991 also, only the M/s Airtech Pvt. Ltd. was invited for negotiations. At that meeting, the MD of that Company stressed that both the offered models, viz. the old 4R and the new model Multipack compactors, conformed with the specifications laid down by the Committee, yet since the new model Multipack compactor was their new improved quality model, and was also economical in its operation, it would meet all the requirements of the respondents, and that if the respondents were not satisfied with its working/performance even after a period of six months, M/s Airtech would replace the same with the existing old system, i.e, model 4R type, by charging the differential amount of Rs.30,000/-, since the quoted price of 4R model was Rs.2,75,000/-, while that of Multipack compactors it was Rs. 2,45,000/-. During negotiations, M/s Airtech also reduced the price of their Multipack model by Rs.20,000/- on each vehicle.
10. At that stage, the MOH suggested that the NDMC should actually require five vehicles for their daily use, and not four, as had been originally tendered, which proposal was agreed to by the entire Committee, and since, after negotiations, the tender offer met all the requirements, the Committee recommended for the purchase order for supply of 5 numbers of refuse compactors of 14 cubic meter capacity each to be placed with the firm M/s Airtech at the newly negotiated offer of Rs.2,25,000/- + taxes and duties. This proposal was ultimately approved by the Administrator-NDMC also.
11. However, a complaint was received by the MOH from unsuccessful bidder M/s Hydramach that the respondents had ultimately decided to purchase the refuse compactors from M/s Airtech at a higher rate than quoted by them. It was further stated that the new Multipack model cannot be termed as a refuse compactor, and, therefore, they had asked for the said tender process to be cancelled, and a fresh tender process to be undertaken. This complaint was attended to, and a note was prepared by the MOH, and circulated to the OSD, Financial Advisor, and the Administrator, justifying the decision already taken, and ultimately, on 06.03.1991, after the Committee having approved the said purchase, the purchase order was placed on M/s Airtech for fabrication and supply of 5 numbers of refuse compactors of 14 cubic meter capacity of their new Multipack model.
12. The incumbent MOH of NDMC got transferred and repatriated to his parent department from deputation with NDMC, and then a complaint dated 09.10.1991 was received by his successor in office, pointing out once again the alleged irregularities in the purchase of refuse compactors from M/s Airtech. Accordingly, the Financial Advisor, vide its note dated 01.11.1991, asked the new MOH to offer his detailed comments on the points raised in the complaint letter. The new MOH also gave his report, and apparently it was decided that no action was called for on the complaint, and that the decision of the Committee was correct.
13. Thereafter, before M/s Airtech was asked to give delivery, they were asked to give an inspection of the vehicles to the Technical sub-Committee. During inspection by the Technical sub-Committee, various suggestions were given by the said sub-Committee for modifications/rectifications of the refuse compactors, which were accepted and carried out by M/s Airtech, and after inspecting the prototype machine on 16.02.1992, the complaint of M/s. Hydramach against the proposed supply was filed. Apparently the Law Officer of the NDMC was also brought into the picture, and he also certified that there was no legal infirmity in the transactions undertaken. Accordingly M/s Airtech was asked to modify the balance four Multipack refuse compactors machines also, and that before supplying, an inspection should be allowed.
14. In spite of all these letters, some disputes still arose in between the Respondent-NDMC and M/s Airtech Pvt. Ltd., which were partially resolved in the year 1993, but since some aspects of inspection of the machinery were involved, an independent agency M/s. RITES was appointed to inspect the vehicles, and to certify as to whether the supplied machines were as per the specifications laid down in the tender document or not. This certificate also having been obtained from M/s RITES, the respondents took the delivery of the supplied equipments.
15. The applicant has submitted that even though the Multipack compactors were purchased on the recommendations of the Committee made in the year 1991, and they have been working satisfactorily, charges were sought to be framed by the respondents against the applicant, relating to his being a Member of the Committee which had recommended purchase of Multipack model, in spite of the old 4-R model, which had been tried and tested. Besides the applicant, 5 more officers, the Chief Engineer (E), the Financial Advisor, the OSD, the Medical Officer (Health), and the EE (Auto) Shri A.K. Goyal were issued charge-sheets in this regard.
16. The applicants grievance is that while the first four of these officers were totally exonerated, the charge sheet was followed up, and an enquiry was conducted against the applicant, and the EE (Auto) namely, Shri A.K. Goyal, even though the charges related to the decisions of a Committee. The Enquiry Officer, without appreciating the facts of various office notings/approvals/decisions taken by various persons, ultimately found that all the charges stood proved against the applicant, and separately against Shri A.K. Goyal also, as already mentioned earlier.
17. The respondents forwarded the report of the disciplinary enquiry to the applicant on 01.09.1998, asking him to make any representation or submission he may want to make within 15 days, which he did, and sought a copy of the advice tendered by the CVC, which latter request of his was rejected. Thereafter, the Disciplinary Authority gave a personal hearing to the applicant, and then passed the order dated 20.04.2000 imposing a major penalty upon the applicant as follows:-
reduction in pay by one stage for a period of two years and will not earn increment during the period of such reduction and on expiry of the said period the reduction will have the effect of postpone all future increments of pay.
18. Aggrieved, the applicant filed an appeal before the Honble Lt. Governor on 12.06.2000. After hearing the applicant, the Lt. Governor also passed an order rejecting the appeal of the applicant, and upholding the orders of the Disciplinary Authority, through his order dated 02.05.2001. The applicant thereafter filed a review appeal dated 01.10.2001, which was also rejected by the Honble Lt. Governor on 15.11.2001. Aggrieved with this imposition of penalty of stoppage of two increments, the applicant is before us, claiming that the impugned order is without any basis, discriminatory, and liable to be quashed on many grounds. None of the portion of the sequence of events has been denied by the respondents in their counter reply.
19. One of the grounds taken by the applicant is that while other seniors of the Committee have been left out, only he being the junior-most amongst all, along with Shri A.K. Goyal, Executive Engineer (Auto), had been charged, and held guilty with respect to the transaction approved by an entire Committee. The disciplinary enquiry, which was sought to be initiated against the other senior Members of the Committee was, however, later dropped. The applicant has pleaded complete non-application of mind by both the Disciplinary Authority, as well as the Appellate Authority, in holding him as guilty, and imposing major penalty, which has resulted in grave injustice to him. The applicant has further taken the ground that the Disciplinary Authority has erred in even framing the Articles of Charges, inasmuch as when the Multipack compactor model, which was offered by M/s. Airtech, was admittedly being manufactured and offered for the first time, with the new technology, there was no question of verification about the specifications, and particularly, the performance report of the said model. He has also taken the ground that the Enquiry Officer has also erred in not appreciating the fact that even an independent agency, namely M/s. RITES, had also confirmed that the Multipack model fulfilled all the specifications and requirements contained in the tender specifications, and that there was no occasion for the applicant to have given any opinion to the contrary at any stage of the process.
20. He has also taken the ground that computation of the cost and evaluation of tender bids was not the task of the applicant, and the Enquiry Officer has failed to appreciate that this task was to be performed by the Finance Department, and it was actually done by the Accountant (HG), on the basis of which the respondent-organization had proceeded to award the work. He has further taken the ground that the addition in the quantity, of four refuse compactors to five, was at the request of MOH, who had initially floated the tender, and this increase in quantity was placed before the Financial Advisor, who gave concurrence to the proposal, and as such this also could not have been formed the basis of a charge against him.
21. The applicant has taken the further ground that the whole negotiating sub committee knew that the details of the performance of the new Multipack model were not known to the department, and the said model had not been tried at all by the respondent-organization and its performance was not known. Therefore, when the Committee had accepted the submission of the Managing Director of M/s. Airtech, who had offered the latest model of the company with latest technology, and has subsequently confirmed in writing that if the respondent-organization was not satisfied, the company agreed to replace the same with the other model, which submission was also considered by the negotiating sub-committee, the applicant could not be alone held responsible for the Committee having accepted to purchase the said model of refuse compactor.
22. He has further pointed out that ultimately one sample of this model of refuse compactor, as approved after various technical modifications being suggested, was supplied only in the year 1993, after necessary approvals had been taken from the Administrator, and an independent outside agency namely RITES had confirmed that this model now met the specifications as set out initially, thus this also could not have formed the basis for framing of an Article of Charge against him in the year 1998, and penalty being imposed upon him in the year 1999, six years after the delivery of the refuse compactors, which were working satisfactorily in the interregnum period of 6 years.
23. The applicant has taken the further ground that both the Disciplinary Authority as well as the Enquiry Officer had failed to take into account the specific opinion of the Law Officer, given as far back as in the year 1992, that the Committee had floated the tenders for 14 cubic mtr capacity refuse compactors without indicating a particular model in the mind, and that there was no infirmity in the transaction, and, therefore, issuing the charge sheet on the applicant on that ground, and upholding of that charge and imposing penalty based thereupon, has resulted in grave miscarriage of justice. He has taken further ground to the effect that charges had been framed against him for things which were not done by him in his individual capacity, and were decisions of the purchase sub-committee, and which decisions had been approved up to the level of Administrator, so he could not have been held responsible.
24. The applicant has taken the further ground that implying that the offer of the competitor was the lowest of the three offers, which the Committee had overlooked, and thereafter holding the applicant guilty, when there were no documents relating to specific delegation of power or role of each Member of the Committee, was unlawful, and the respondents could not have framed the charge against the applicant that he failed to make verification about the specifications and arrangements, and the performance report of the selected model, when everybody in the negotiation sub-committee knew that the details of Multipack model were not known to the respondent-department, without which the purchase of the untried model may not be proper, but that this could not have formed the basis of a charge against him alone. He again took the ground that he was the junior most Member of the negotiating sub-committee, and no specific role or power was delegated to him at the time of formation of the Committee, and, therefore, issuance of the charge sheet to him had resulted in grave miscarriage of justice. He had further pointed out that the tenders had been invited only for fabrication work, and not for operation and maintenance contract, while the competitor firm had first included the operation and maintenance cost for first two years, and then offered to reduce the price as mutually agreed after negotiations, by which it was clear that the charges for operation and maintenance were not free, but were actually included in the price indicated by them, and when they agreed to reduce its price by Rs.30,000/-, this aspect had been taken into account by the Accountant (HG) while preparing the comparative statement with respect to the financial bids, and this also could not have formed the basis of a charge being made out against the applicant.
25. He has taken the further ground that the enlarged Committee has been constituted by including the Financial Advisor and the Officer on Special Duty, and the DLO as a part of the negotiation sub-committee, but not ordering any enquiry against these persons, while issuing charge sheet to the applicant, has resulted in grave miscarriage of justice. He took the further ground that the Vigilance department had categorically stated that post tender negotiations were banned, except in the case of negotiations with the L-1, but only that had been done in the instant case, which was not appreciated, and had resulted in grave miscarriage of justice. He also took the ground that the respondents had erred in not giving copies of all the documents as sought for by him during the enquiry, and not allowing of the witnesses as sought for by him during the enquiry has resulted in grave miscarriage of justice.
26. Actually, during the arguments in the case, the learned counsel for the applicant had specifically brought to our attention the Daily Order Sheet dated 22.01.1998 in which the following records had been maintained:-
No.57/GR/80 Government of India Central Vigilance Commission Departmental Inquiry against Sh. V.K. Gulati, AE (C), NDMC, New Delhi.
New Delhi 22/1/98 DAILY ORDER SHEET Received COs letter dt. 19/1/98, with a copy to PO permission for citing 4 DWs. All DWs except Sh. A.K. Vashisht are permitted. Since the case relates to finalization of tendors and not on performance of vehicle, Sh. Vashisht is not permitted.
Summons for 3 DWs are sent herewith to CO with the direction that the same may be served on them after filling their latest address and their presence may be ensured.
Copy of this order is being sent to PO and CO for information and compliance.
Sd/-
(GEETA RAM) CDI & INQUIRY OFFICER (Emphasis Supplied)
27. The applicant had taken the ground that when the view of the Enquiry Officer himself was that the case related only to finalization of tenders, and not to the performance of vehicles, because of which one Defence Witness Shri A.K. Vashisht was not permitted to be produced by the applicant, a charge relating to not assessing the performance of the refuse compactors could not have been framed and sought to be sustained by the respondents against him. He had reiterated his contention that the respondents have acted with malafide in having followed the policy of pick and choose only some Members of the Committee for issuing a charge sheet, while the senior most members of the Committee who were actually Incharge of the day today proceedings of the Committee, and were responsible for taking the decisions, and even increasing the number of the refuse compactors from four to five, have been allowed to go scot free by the same Enquiry Officer, and even the Appellate Authority has also upheld the decision of the Disciplinary Authority, which has resulted in grave miscarriage of justice. He had further taken the ground that CBI had also investigated the matter, and after investigation no criminal prosecution was initiated either against the applicant, or any other member of the Committee, which showed the bonafide actions of the Committee, and, therefore, he had prayed for the penalty imposed upon him to be quashed and set aside.
28. The respondents filed their counter reply before this Tribunal on 21.09.2011. In this counter reply they had justified the major penalty proceedings initiated against the applicant in the case relating to the award of the tender for the work of fabrication and erection of garbage compacting machines on the basis of the Charge Sheet issued to the applicant, and the punishment ultimately imposed upon him, as being proper and justified. It was submitted that the applicant was the AE of the Compost Plant at that time, and was aware of the intricate details and requirements of the respondent-organization, and was, therefore, most suited to evaluate the tenders technically. They admitted that the applicant had examined the offers with regard to technical specifications, and submitted his opinion to this effect that the specifications and arrangements were the same in both the modes, Model 4R and Multipack quoted by M/s Airtech, but that there was only difference in the shape of the machines, and had further submitted that the model Multipack can actually lift multisized containers from 1 to 5 cubic mtr., which could be considered to be an additional advantage of the model, but the respondents had taken objection to the fact that these comments were given by him without making any verification with regard to this specifications and arrangement, particularly the performance report of the Multipack model.
29. They had pointed out that the comparative statement of the offers of the two bidders was prepared wrongly, and the offer mentioned by M/s Hydramach with regard to the free operation and maintenance of the machine being offered by them was not mentioned, but the respondents nowhere stated that it was the applicant alone who had prepared that comparative statement. They had tried to point out that a fraud was carried out on the answering Respondent by the applicant, who was also a Member of the Committee when the Committee had raised objection to the offer of M/s Hydramech that they had included the cost of operation and maintenance in the price offered, but in spite of deducting the operation and maintenance cost of M/s Hydramech, their machine, which was @ Rs.42,000/- per year, only Rs.30,000/- per machine was deducted from the cited offer, by which M/s. Airtech offer came to be the lowest, while the cheaper offer of M/s. Hydramech was not considered. In their detailed counter reply, most of the actions were attributed by the respondents to the approvals given by the Sub-Committee, of which the applicant was one of the Members, and thereby concluded that he had shown lack of absolute devotion, and his behaviour was further amplified by its faulty judgment, because of which the recommendation was made to purchase an untested Multipack model by the respondent-organization.
30. It was further pointed out that action to initiate disciplinary proceedings was initiated against all the officers, and even the Charge Sheet Memo was served upon Shri J.N. Rohtagi, CE(E), Dr. S. Chatterjee, Medical Officer (Health), A.K. Goel, Executive Engineer (Auto) and the applicant. But the charges against Dr. S. Chatterjee, the then MOH, and Shri J.N. Rohtagi the then CE(E) were ultimately dropped. It was further submitted that the task of conducting the enquiry had been entrusted to the Commissioner of Departmental Enquiry of the office of Central Vigilance Commissioner, and the applicant was given full opportunity by the Inquiry Officer to present his case, a copy of the enquiry report was supplied to him, the applicant was allowed to submit his written submissions on the findings given by the Enquiry Officer, and even an opportunity of personal hearing was afforded to the applicant by the Chairperson/Disciplinary Authority, before the decision was taken. Therefore, the respondents had justified the imposition of penalty upon the applicant, after considering the findings given by the Inquiry Officer, and submissions of the applicant, in writing, as well as during the course of personal hearing. The respondents had also point by point denied all the grounds taken by the applicant in challenging the procedure adopted by the respondents, and it was submitted that the Inquiry Officer has, while giving his findings, nowhere concluded that the enquiry was completed without supplying defence documents submitted by the applicant, and that the Inquiry Officer has given his findings finally, which had concluded the charges as proved. It was, therefore, prayed that the TA should be dismissed, and cost should be imposed upon the applicant.
31. The case was heard in detail, and written arguments were also served on behalf of both the learned counsel for the applicant, and the learned counsel for the respondents.
32. Since the written arguments on behalf of the applicant have more or less reiterated the submissions as already described above in great detail, it is not necessary to reproduce them once again. It was submitted that the applicant had not been entrusted with the job/work of evaluation and computation of tenders. It was pointed out that even as per the CPWD Works Manual, 2007, it was the duty of the Divisional Accountant for doing the job of checking the tenders, and preparation of comparative statement. It was further submitted that though the applicant had no role in enlarging the scope of purchase, and praying for sanction of one more compactor, the CPWD Code Para-89 actually permits such change and substantial alterations in the Tenders, with the approval of the Financial Advisor attached to the Ministry/Department, and since the negotiations for the purchase of the garbage compactors was also under the Chairmanship of the Financial Advisor of the respondent-organization, all other Members, who also included the OSD, who was an IAS Officer, had all agreed in the decision making process, and the respondents could not now be allowed to pick and choose, and blame the applicant alone.
33. Great emphasis was laid by the learned counsel for the applicant during his arguments on the Daily Order Sheet dated 22.01.1998, already reproduced in para 26/ above, to say that when the Inquiry Officer himself was of a view that the case related to finalization of tenders, and not on performance of the vehicles, because of which the presence of Defence Witness Shri A.K. Vashisht, as prayed for by the applicant, had been denied, subsequently the Inquiry Officer could not have held him guilty of the charge of not verifying the performance of the vehicles likely to be procured, which was a new model, which fact was known to the entire Committee, and may modifications to which were suggested before purchase of the first model in the year 1993. The learned counsel for the applicant further submitted in his written submissions that the Inquiry Officer had failed to adhere to the provisions of Rule-14(18) of the CCS (CCA) Rules, as he did not question the Charged Officer generally in regard to the evidence against him, and submitted that it is settled law that when this provision had not been complied with, the whole inquiry is vitiated, and the impugned orders have to be set aside.
34. The learned counsel for the applicant also submitted that the applicant had through his letter dated 18.09.1998 requested for supply of a copy of the CVC advice in his case, which the respondents had, through their letter dated 12.10.1998, refused to supply, and submitted that it is well settled law that if the copy of the advice of the CVC or the consulting Commission, the Union Public Service Commission, is not supplied, the Inquiry stands vitiated. By producing the Daily Order Sheet dated 22.01.1998 already reproduced in para 26/ above, and extracts from CPWD Works Manual, 2007, and CPWD Code extracts, the learned counsel for the applicant had once again sought and prayed for the TA to be allowed.
35. In the written submissions filed on behalf of the respondents on 05.07.2013, it was submitted that both the EE(Auto) and the applicant as AE (Compost Plant) were made a part of the Special Committee with specific intent in mind, and had thereafter gone on to submit that both the persons had failed in assisting the Committee in the proper performance of its duty. It was submitted that the applicant, as the AE of the Compost Plant, was fully aware of the intricate details and requirements of answering respondents, and was the most suited person technically, but he had rather given his opinion that the Multipack model can lift multi sized containers, which could be considered to be an additional advantage, without making any verification with regard to the specifications and arrangement, and particularly the performance of the Multipack model. The respondents had, therefore, gone ahead to state that since the applicant was a party to the proceedings of the Committee, and that the co-delinquents have also been punished, the entire records of which have been shown to the Tribunal, and the respondents had, therefore, prayed for the TA to be dismissed with costs.
36. After hearing the case in great detail, we have given our anxious consideration to the facts of this case. To our mind this whole case against the applicant is fraught with many infirmities, because of which the penalty imposed upon him by the respondents cannot at all be sustained. Firstly, the Purchase Committee was constituted in 1991 in a hurry, without assigning any specific duties and functions to the individual Members of the Committee. It is only as an after thought that now the respondents have stated in their pleadings and written arguments as to what duty they had expected the applicant to perform or to do as the junior most Member of the Committee, which duties he had failed to perform. But we find that in the long narrative, which we have reproduced above from the applicants Writ Petition, about the day today procedure and methodology followed by the Committee, that the Committee at no stage appears to have reposed its entire faith in the applicant himself alone regarding technical specifications of the refuse compactors to be certified after testing.
37. It is well known that new technologies keep on emerging in every field. It is clear that in the instant case a particular firm, which got the tender, had initially itself indicated that one machine quoted by it is an old model machine, already tried and tested, and the second one is a new one, which incorporates the latest technology. The Committee, therefore, in its wisdom, later on went for the machine which incorporated the latest technology, and, actually, in order to test and improve its performance, even suggested design changes for improving its performance, because of which the whole process of purchase, started in a hurry in March 1991, and ended in a whimper, by the actual purchase being effected only two years later in the year 1993.
38. It is admitted by the applicant that he had supported the machine offered with new technology, which machine had till then in 1991 perhaps not even been manufactured, and so could not have been tested too, and had been quoted only on the basis of designs and pamphlets available. The other members of the Committee being senior to the applicant need not have gone by the opinion of the applicant, but they appear to have convinced themselves to try out the new technology machine. The applicant, therefore, cannot be held responsible for the choice of the model of the machine to be purchased.
39. Actually we find that the charges as framed against the applicant for conducting the disciplinary enquiry have been framed in a language as if the applicant alone was responsible for the whole purchase decision, and many actions had actually been tasked to be performed by him alone, and were actually performed by the Committee designated for this purpose. Therefore, in our opinion, the junior-most Member of the Committee cannot be held responsible for the decisions taken by the Committee as a whole.
40. One more infirmity is that in this particular case, since initially a decision had been taken to proceed against all the five Members of the Committee, the task of conducting the disciplinary enquiry was entrusted to the Commissioner of the Inquiry in the office of CVC.
41. In the case of Prem Prakash vs. Union of India OA No.89/2009 of Jodhpur Bench, in the judgment delivered on 14.12.2011, in which one of us [Shri Sudhir Kumar, Member (A) was a party], it has been held that the CVC office can have no connection or nexus with the task of conduct of disciplinary enquiries, and there ought to be a virtual steel wall type of separation between the task of Vigilance functions to be performed by the CVC, and the officers of the respective departments who have to perform disciplinary functions, which have to be performed by them as the Disciplinary Authority, the Appellate Authority, and the Review or Reviewing Authority, apart from the Inquiry Officer, who is a delegatee of the Disciplinary Authority. While there is no bar under the law as to whom the Disciplinary Authority can appoint as his delegatee Inquiry Officer, and, therefore, in the instant case, we cannot outright hold that the incumbent officer holding the Chair of Commissioner of Inquires in the office of the CVC could not have been the delegatee of the Disciplinary Authority, the Chairman/Administrator of NDMC, to conduct the disciplinary enquiry proceedings, that certainly was not the happiest of the situations which ought to have prevailed. It is in the best interest of the delinquent Government officials, as well as the performance of quasi judicial functions by the Disciplinary Authorities, that the vigilance and disciplinary functions ought to be totally separated, at every stage, as has been held in detail in the order of Jodhpur Bench in Prem Prakash (supra), which we need not reproduce here in detail.
42. It appears to us that the Service Law does not provide for the junior-most individual Member of a Committee to be held responsible for all decisions and actions of the Committee, without his having been assigned a specific role, and his having failed to perform that specific role, or having performed that role in a malafide or mischievous manner. That does not appear to be the case in this case. The applicant was the Assistant Engineer In-charge of the Compost Plant, or Compost pit, and who was the end user of the compost garbage to be brought to the compost pit. In such circumstances, he could not have been held responsible for all the decisions taken by the Committee which included four persons much senior to him, and much more knowledgeable, and who had further involved the Accounts Section for the purpose of preparation of comparative statement of the tenders, and had obtained the permission of the Chairman of NDMC himself for the machine model selected by the Committee, before placing the orders. Obviously, therefore, the applicant cannot be held responsible for the actions of all those persons.
43. The most telling aspect which absolves the applicant of any charge of delinquency as framed against him is the endorsement of the Daily order Sheet dated 22.01.1998 of the Inquiry Officer himself, reproduced by us in para 26/ above, where he had held that the case against the applicant related only to the finalization of tenders of the Committee of which he was a part, and did not relate to the aspects of performance of the vehicle, because of which Shri A.K. Vashisht was refused to be allowed as a Defence Witness, while we find that ultimately he has gone on to hold the applicant responsibility for not certifying and verifying the performance of the vehicle in respect of the machine for which tenders were accepted. Therefore, it is clear that the Inquiry Officer himself has gone astray, and that the Disciplinary Authority was wrong in having accepted the report of the Enquiry Officer.
44. In the end, having noted the contents of the voluminous enquiry conducted against the applicant, we fail to find that the respondents, Chairperson and Disciplinary Authority of the applicant, was right in holding the applicant responsible for the following, which observations could not have been made against the applicant, in the absence of any formal assignment of responsibility upon him as Member of the Committee:-
..The addition in the quantity of one more Refuse Compactor, during the course of negotiations, was in contravention to the provision of schedule of quantity contained in the said tender. Besides, M/s Hydramech was not afforded with equal opportunity for quoting their rate with regard to additional quantity of Refuse Compactor and thus his action as member of negotiation sub committee created a post tender development depriving M/s Hydramech of an equal opportunity to quote thereof.
In the case of tender for fabrication and erection of Refuse Compactor of 14 cu.m. capacity, the approval sub committee, of which he was also the member, in its meeting held on 13.2.91 recommended that the work may be awarded to M/s Airtech for supply of 4R model. But during the course of negotiation held under the Chairmanship of F.A., NDMC on 26.2.91, when he was also present, it was decided to purchase the Multipack Model. He, as a member of the negotiation sub committee failed to point out about the fact that details of the performance of Multipack model were not known to the department without which the purchase of Multipack model may not be proper as this model was not tried by NDMC and its performance was also not known.
xxxxxxxxxxxxx In this case, the basic charge against Shri V.K. Gulati, A.E ( C) is that he failed to properly compute the offers made by two tenderers in the case of tender for fabrication and erection of refuse compactor which were invited in January, 1991. Also failed to properly evaluate the tenders in his scrutiny note. No effort was made to assess the past performance of new multi pack model offered by M/s Air Tech. He was aware that the operation and maintenance of these machines were also got done through contract and one of the tenderer offered for free operation and maintenance for two years, still while computing the offer he did not point out about the operation and maintenance part of these machines in his report. Therefore, as an Engineer, he has failed to reflect and analyse the true conditions of the offers of both the tenderers properly with the result M/s Air Tech were the lowest tenderer in this case.
45. Therefore, the TA is allowed, and the impugned order is set aside. But there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.