Central Administrative Tribunal - Delhi
D.K. Agarwal, (Staff No. 20357), Joint ... vs Union Of India (Uoi) Through The ... on 4 December, 2006
ORDER Mukesh Kumar Gupta, Member (J)
1. Validity and correctness of charge-sheet memorandum dated 02.06.2004, which culminated in imposition of penalty of withholding of one increment for a period of one year without cumulative effect, vide order dated 18.10.2005 is challenged in present O.A.
2. Applicant is a member of Indian Telecom Service of 1991 batch and presently holding the post of Joint Deputy Director General (Junior Administrative Grade) in BSNL (erstwhile Department of Telecommunications). Memorandum dated 02.06.2004 was issued under Rule 16 of CCS (CCA) Rules, 1965, alleging certain misconduct. As per statement of imputation of misconduct, it was alleged that during the period 1998-1999, while working as DE (Task Force) Pali, he controlled/supervised work executed by his subordinate and the contractors, and was duty bound to make 10% physical verification of out-door work in the said area. He was required to mention the specific work, which he had physically verified in Measurement Book after entries by the concerned JTO and SDE. He did not mention the measurement of work checked by him as well as did not specify the detail of places/points which he had checked, thereby showing undue favour to the contractors by making/showing exaggerated entries in the Measurement Books and the contractor succeeded in getting full payment of the work, which caused wrongful gain to the contractor and corresponding loss to Department. Vide letter dated 22.06.2004, he requested to supply copies of certain documents to prepare his defence so as to make an effective representation. No attention was paid to it and, therefore, he submitted a representation dated 11.10.2004 denying the allegations made and prayed for his exoneration.
3. The contention raised by applicant is three fold. Firstly, there had been abnormal and unexplained delay in initiating the action. The incident pertained to the year 1998-1999, though proceedings were initiated only on 02.06.2004. Secondly, the second stage CVC advice had not been supplied to him. Thirdly, the documents sought for were not supplied despite specific representation made.
4. Allegation made against him had been that as per CPWD Manual/ Rules, he was required to make 10% physical verification of the work executed under his control. Cognizance of said Manual should not have been taken by the Department, as the opening para under Chapter 1, Section 1 of said Manual, in specific, recites that it do not include works x x x x x x x x x x x P & T Department x x x x x x x x x x x It is contended that he was not given any training in making inspection of digging, laying down of cable etc., which are specialized works. As per BSNL communication dated 8.11.2001 (Annexure A/5), instructions regarding cable laying works were issued, according to which concerned DE was made responsible for 10% checking of cable laying work. As the incident in question pertained to the period prior to issuing said instructions, the Department is precluded to rely upon it. Moreover, said administrative instructions cannot be operated upon retrospectively. One Shri R.K. Vyas was also proceeded departmentally for same and similar allegation, but no statutory penalty was imposed upon him only on the ground that he attained the age of superannuation, therefore, displeasure alone was issued to him, which amount to discrimination. As per instructions issued vide Government of India, Central Vigilance Commission, order dated 10.08.2004, the schedule of time limit in conducting investigation in departmental enquiries was laid down by the Commission vide letter dated 23.5.2000, and had to be strictly adhered to. Shri S.N. Anand, learned Counsel for applicant vehemently contended that because of aforesaid reasons and contentions, applicant is entitled to relief as prayed for. The penalty order was passed without application of mind and merely based on UPSC recommendations made on 08.09.2005. Since the penalty was imposed by Presidential order, he had no right of statutory appeal, contended learned Counsel.
5. Respondents by filing reply contested the averments made and the claim laid. It was stated that charge-sheet was issued to applicant after the irregularities came to notice of the Department, which were duly investigated. Since prima facie case was established, minor penalty proceedings were initiated after due consultation with Central Vigilance Commission and following the prescribed procedure. In proceeding under Rule 16 of CCS (CCA) Rules, there is no requirement of consultation with CVC at second stage, particularly when no oral enquiry is held. In the present case, no oral enquiry was held and, therefore, the question of 2nd stage consultation with CVC did not arise. The training as applicable and possible had been imparted and the applicant is making an excuse to escape from his responsibility by misrepresenting the facts. The OM issued by CVC was not mandatory, but mere guidelines. There was no delay in initiating action after the irregularities surfaced and came to the notice of competent authority. Vide Memorandum dated 16.8.2004, he was directed to inspect the documents in the Office of DGM (Vig.), Rajasthan Circle. He made representation much thereafter, i.e. on 11.10.2004 and, therefore, his plea that Respondents denied him the required documents is not only untenable, but an example of false-hood. The disciplinary proceeding under the Rules in vogue is a quasi-judicial proceeding & the prescribed procedure had been followed. No injustice has been done to applicant. The penalty was imposed in accordance with the provisions of statutory rules after recording specific findings, holding him guilty. Applicant did not exhaust all remedies available to him, particularly under Rule 29 (A) of CCS (CCA) Rules, & he should have sought review of the order passed by the competent authority if any new material, which had the potential to change the complexion of the case, was available to him.
6. By filing rejoinder, applicant reiterated the contentions raised while denying the pleas put-forth by Respondents.
7. I have heard learned Counsel for the parties and perused the pleadings on record carefully.
8. On close perusal of pleadings and upon hearing learned Counsel for the parties, following admitted facts emerged:
Vide letter dated 18.11.1998, contract was awarded to a Firm to execute work of laying Optical Fiber Cable at Pali-Marwar by digging trenches of 165 cm. depth and then to lay of cable and cover the trenches by replacing the soil excavated earlier. Based on source information, CBI Jodhpur registered a regular case against several officers of Telecom Department for executing substandard work of laying of cable in Marwar Group Exchange area and Auwa Exchange area in connivance with the private contractors. Investigations revealed that the work of laying of Optical Fiber Cable was not carried out as per the agreement. As per random checks at the sites, it was revealed that the cable was found at the depth of 115 cms, 112 cms, 137 cms and 154 cms. Applicant in his written submissions dated 11.10.2004 clearly stated that: the work was supervised/checked by Shri T.R. Rawat, JTO to the extent of 100% and was verified by the SDE (Task Force) to the extent of 50%, and by me to the extent of 10%. The fact that I had carried out the test checks to the extent of 10% has been noted in the relevant M.B. In para-6, it was further stated that: I wish to state that entries in the M.B. were made as per practice prevalent at that time. The UPSC in its advice dated 08.09.2000 had also noticed that applicant sought relaxation of same terms & condition from the GM, Telecom District (GMTD), Pali-Marwar with regard to HDPE/RCC pipes at lesser depth than the specific depth at certain sections, which was accorded on 10.10.2000. It was further stated by UPSC in para 7.2 that mentioning of exact locations of 10% check by DE in the Measurement Book are all the more essential, in order to restrict his responsibility to those points only, otherwise it will not be possible to identify the locations where such test-check was done, as has appended in this case.
9. If one has regard to the above admitted aspects, it would be clear that the applicant's contention that provisions of CPWD Manual were not applicable, does not hold the filed. As per prevalent practice and according to applicant's own understanding and statement made, he was required to carry out the test check to the extent of 10%. On perusal of said reply dated 11.10.2004, I also find that the plea of delay as raised in the pleadings had not been the ground taken. The only plea taken had been that the Contractor laid underground cable in the same trench dug in that area in February/March 2001, i.e., after two and a half years. In the circumstances, the plea of delay raised is an after-thought and no cognizance of this can be taken.
10. Further perusal of order dated 10.08.2004 (Annexure A/6) established that the proceedings initiated against Shri R.K. Vyas, the then Divisional Engineer Telecom (Rural), Pali vide Memorandum dated 10.09.2003 on the charges of irregularities in cable laying work at Marwar Junction Ist and IInd came to an end by conveying Government's displeasure for the lapses on his part, as he had retired by then on attaining the age of superannuation in January 2004 and the proceedings initiated were under Rule 16 of CCA (CCS) Rules. It is well settled that penalty can be imposed against a delinquent official after retirement only when a grave misconduct is established and not otherwise. Proceedings under Rule 16 cannot invite penalty of such nature.
11. For the plea raised regarding non-supply of 2nd stage CVC advice, Respondents have amply clarified that no such stage came as there had been no oral hearing held in the present case, being the proceedings under Rule 16 of CCS (CCA) Rules only. Since such stage did not mature, and, therefore, there remains no question of supplying/communicating CVC's 2nd stage advice.
12. As far as plea of non-supply of relevant documents, as asked for, is concerned, I do not find any substance in the said plea. Rather such plea advanced is contrary to facts as admitted by him in reply dated 11.10.2004. Vide para-2 of said reply, it was unequivocally stated that I am highly obliged to your Excellency for agreeing to my request. I have been supplied copies of the relied upon documents on 30th September, 2004. The application for supplying the documents had been dated 22.06.2004. If applicant was still aggrieved about non-supply of certain documents, which he expected the authorities to supply him, nothing prevented him to point out, in specific, such required documents to be supplied. On the other hand, applicant's stand noticed hereinabove indeed goes to establish that he was satisfied with the supply of documents and no documents remained unsupplied.
13. As far as adherence to time limit in processing disciplinary cases is concerned, I may note that the guidelines laid down by Central Vigilance Commission prescribing schedule of time limit in conducting investigations as well as departmental enquiries is only a guideline/ direction and was not a mandatory provision. Each case has to be judged in the given facts and circumstances and no sweeping findings that delay always causes prejudice could be recorded. In my considered view, no prejudice has been caused to the applicant on account of the said alleged delay, if any, though I am of the considered view that there was no delay at all in initiating and concluding the proceedings.
14. In view of the discussion made hereinabove, OA is found to be bereft of any merit and accordingly the same is dismissed. No costs.