Praveen Kumar Agarwal vs Union Of India And Ors

This writ petition has been filed by petitioner-Praveen Kumar Agarwal challenging the judgement dated 15.09.2011 passed by the Central Administrative Tribunal, Jaipur, whereby the Original Application (OA) filed by the appellant has been filed. Petitioner has filed the OA challenging the order dated 21.06.2010 by which the disciplinary authority imposed penalty of reduction of pay of the petitioner by two stages in the time scale of pay, for a period of two years with further direction that he will not earn increments of pay during the period of reduction and on expiry of that period, the reduction will have the effect of postponing his future increments of pay. Petitioner in the Original Application had also challenged the memorandum of charge sheet dated 7.12.2006 on the basis of which the disciplinary enquiry conducted against him culminated into imposition of penalty aforesaid.

Brief facts of the case are that petitioner at the relevant time was working as Assistant Executive Engineer under Lucknow Central Division-II, CPWD Lucknow (UP). He was incharge of the 42 numbers Type-IV Quarters at Jankipuram, Lucknow executed from 11.11.1997 till the completion of work. Several inspections of the work was conducted by senior officers, i.e., Chief Engineer (NZ-II) and Superintending Engineer (Allahabad). It is alleged that these officers repeatedly pointed out the defects in the work right from the beginning. The work was then inspected by the Chief Engineer (CSQ) Shri V.S. Dixit on 8.9.1998. After preliminary investigation, explanation of the petitioner was called by the vigilance unit for the lapses on his part and after receipt of reply, the investigation report was sent to the Chief Vigilance Commission (CVC) for their advice vide UO note dated 4.4.2006. The CVC advised for major penalty proceedings against EE, AE, AEE and JE and also to comment on role of CE and SE for their failure in their supervisory responsibility vide OM dated 2.6.2006. The disciplinary authority on the advice of CVC initiated disciplinary proceedings against the petitioner under Rule 14 of the CCS (CCA) Rules, 1965 vide memorandum dated 7.12.2006. In the memorandum of charge, it was alleged that when the petitioner was posted and working as Assistant Executive Engineer under Lucknow Central Division-II, CPWD Lucknow (UP) during the period 11.11.1997 to 27.8.2000, he got executed the work of construction of GPRA in Pocket B at Sitarpur Road, Lucknow. As per Article-1, even against the directions of the senior officers, the petitioner while working on the aforesaid post continuously allowed execution of sub-standard work and recommended payment at nearly full agreement rates from 5th to 9th RA bill of the said work in contravention of Para 7.30 of CPWD Manual Vol.II. As per article 2, the petitioner while working as AEE failed to check cement godown as per stipulations contained in CPWD as per CPWD Manual Volume-II and failed to ensure proper arrangements of storage of cement, resulting into setting/partial setting of 169 bags of cement, thus making them unusable and as per article-3, the petitioner while working as AEE failed to ensure compliance of the instructions entered in the Site Order Book regarding bad quality of bricks, brick work, RCC and steel shutters from the Contractor. Besides this, he failed to take note of these entries and their compliance before recommending payment of various running account bills in terms of Para 26.2 of CPWD Manual Vol.II.

The enquiry officer after conducting the enquiry, submitted report dated 29.11.2007 holding the charges as partly proved. The report was sent to the CVC for second stage advice and the CVC after taking into account overall facts and circumstances advised for imposition of major penalty upon the petitioner.

On receipt of the copy of enquiry report, petitioner submitted his representation on 23.12.2008 and denied the allegations levelled against him. The representation of the petitioner was examined by the Disciplinary Authority and his case was sent to the respondent UPSC for advice. The UPSC after examining the matter, conveyed its advice vide letter dated 25.5.2010 and thereafter the impugned punishment order was passed.

Shri R.P. Singh, learned senior counsel appearing for the petitioner has submitted that the disciplinary proceedings against the petitioner pertaining to the work executed from 1.11.1997 to 27.8.2000 was initiated belatedly particularly when the respondents have claimed that CE (CSQ) conducted the inspection of the site on 8.9.1998. The disciplinary enquiry was initiated in December, 2006, thus with delay of 8 years. The order of penalty was passed on 21.6.2010, which was thus with delay of 12 years. Out of three charges against the petitioner, one of the charges was that he failed to check the cement godown as per the stipulations contained in CPWD manual Vol.II and failed to ensure proper arrangements of storage of cement, resulting into setting / partial setting of 169 bags of cement. The enquiry officer gave a definite finding that larger number of entries made in the site book order, which are made part of charge sheet were regarding the period when the applicant was not posted at the relevant post. The enquiry officer had taken into consideration the observations of Chief Engineer, CSQ as per the inspection dated 8.9.1998 and his SE, CSQ for inspection in December, 1998. The delinquent cannot be held guilty merely on the basis of the guess work. The petitioner could not be held guilty for the stock, which was in custody of the concerned Director. Moreso, when there is no finding that the setting period or the strength of the concerned cement available in stock had reduced. The Institute of Engineering and Technology, Lucknow, which is Government Engineering College clearly revealed that during the entire testing operation on the structure, in all the blocks, no cracks, distress or any type of deformation was observed on brick walls and RCC components of the structure. It is therefore argued that all the quarters of structures were safe and sound. The Tribunal has erred in law in clearly dismissing the OA filed by the petitioner. The charge sheet was liable to be quashed and set aside for the reason of delay of six years and thereafter further four years till the date of final order passed, thus the matter remained pending for as long as 12 years. Reliance is placed on the judgement of the Supreme Court in State of M.P. vs. Bani Singh-AIR 1998 SC 1833 and State of Andhra Pradesh vs. N.Radhakishan-AIR 1998 SC 1833.

It is argued that it is a case of clear discrimination. There were two Chief Engineers, two Superintending Engineers and three Executive Engineers in respect of the execution of work in question for the relevant period. Apart from that there were three Assistant Engineers/Assistant Executive Engineers and one Junior Engineer before inspection was conducted by the Chief Engineer (CSQ) in September, 1998. Petitioner joined on this work on 1.11.1997 when many officers had already worked on it. The enquiry officer did not give specific finding that the cements had got set or partially set and had become unusable. The enquiry officer had given a finding that a larger number of entries made in the site book order, which are made part of the charge sheet were regarding the period when the petitioner was not posted at the relevant post. The Superintending Engineer, who is the final authority for allowing the work to continue in spite of there being defects for deciding about the quantum of defects in any work, had himself passed the reduced rate (RR) statement in terms of the CPWD manual Vol.II para 31.3. The concerned SE-in-charge (PW3) had passed the reduced rate statement even without inspection of work and without collection of any sample and without conduction of any test. He had considered all bricks as one grade below than specified without any basis and without any adverse test report and that too after the structure had passed the load test with great safety margins. There was no low quality of work, but the SE-in-charge in order to save his skin from the observations made by the Chief Engineer, Quality Control, issued the RR with a view to put the burden on the petitioner and other subordinate officers. In support of his arguments, learned senior counsel cited the judgement of the Supreme Court in R.R. Parekh vs. High Court of Gujarat & Anr.-(2016) 14 SCC 1 and Rajinder Kumar vs. State of Haryana & Anr.-(2016) 15 SCC 693.

Alternatively, learned senior counsel argued that in the facts of the present case, the penalty is highly excessive and disproportionate to the gravity of the charges.

Shri Samit Bishnoi, learned counsel for the respondents opposed the writ petition and submitted that the order of penalty was passed after full fledged enquiry, in which the opportunity was afforded to the petitioner to participate in the proceedings and produce his evidence/witnesses and cross examine the witnesses produced by the respondents. The petitioner has availed of all such remedies. After enquiry, the enquiry report was sent to CSQ. The CSQ advised for major penalty. At the time of awarding penalty, UPSC was consulted. The letter dated 25.5.2010 (Annexure-R/1/1) was sent by the UPSC regarding imposition of the said penalty. In support of his arguments, learned counsel relied on the judgement of the Supreme Court in General Manager (Operations), State Bank of India & Anr. vs. R. Periyasamy-(2015) 3 SCC 101.

We have perused the impugned order and taken through the enquiry report, the order of penalty passed by the disciplinary authority as also the report of the UPSC dated 25.5.2010.

We may at the outset, make it clear that in the matter of disciplinary enquiry, the scope of judicial review of this Court under Article 226 is extremely limited. Penalty orders in the case of disciplinary matters are passed after there was material available on record applying the principle of Wednesbury if it is found that no person of ordinary prudence could have arrived at the satisfaction that he did on the given material. In the present case, the enquiry officer as also the disciplinary authority have considered the charges against the appellant in greater details even the UPSC in their letter dated 25.5.2010 conveyed advise to the respondent, has found that there was sufficient material to proceed against the petitioner to award him the penalty and it is under the advise of the UPSC that penalty has been awarded. It therefore cannot be said that in the enquiry, there was total absence of evidence against the appellant. It is trite that this Court in the scope of Article 226 of the Constitution in a disciplinary matter, cannot go into the adequacy of otherwise of the material against the delinquent, if there is some material to support the charges against the delinquent, the disciplinary authority would be well within its jurisdiction to impose penalty.

Even coming now to the alternative submission of the learned counsel for the petitioner that the penalty in the facts of the case was disproportionate, we hardly find any justification for such an argument.

The charges against the petitioner are as follows:

"Shri Praveen Kumar Agrawal, Executive Engineer (c) while posted and functioning as Assistant Executive Engineer, under Lucknow Central Division-II, Central Public Works Department, Lucknow (UP) during the period from 1.11.1997 to 27.8.2000, got executed the work of "construction of GPRA in Pocket B at Sultanpur Road, Lucknow (SH: Construction of 42 numbers Type IV staff quarters including water supply, sanitary installations and drainage)" vide agreement No.3/EE/LCD-II/95-96, wherein he committed following irregularities:

Article-1

Even against the directions of the senior officers, the said Shri Praveen Kumar Agrawal, EE while working as AEE continuously allowed execution of substandard work and recommended payment at nearly full agreement rates from 5th to 9th R/A Bill of the said work in contravention of Para 7.30 of CPWD Manual Vol.II.

Article-2

The said Shri Praveen Kumar Agrawal, EE while working as AEE failed to check cement godown as per stipulations contained in CPWD Manual Volume-II, and failed to ensure proper arrangements of storage of cement, resulting into setting/partial setting of 169 bags of cement, thus making then unusable.

Article-3

The said Shri Praveen Kumar Agrawal, EE while working as AEE failed to ensure compliance of the instructions entered in Site Order Book regarding bad quality of bricks, brick work, RCC and steel shutters from the Contractor. Besides he failed to take note of these entries and their compliance before recommending payment of various running account bills in terms of Para 26.2 of CPWD Manual Vol.II.

By committing above lapses, the said Shri Praveen Kumar Agrawal, EE while working as AEE (C, failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner, which was unbecoming of a Government Servant thereby contravening Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct)Rules, 1964."

The aforesaid charges against the petitioner shows that they were quite serious. Such charges have been proved by evidence in the enquiry report and thereafter the disciplinary authority has also concurred therewith and awarded penalty. The detailed discussion of the evidence against the petitioner has been made in the order of disciplinary authority as also the order advised by the UPSC.

In view of above, there is hardly any scope for interference. The impugned judgement of the Tribunal, in our view, does not suffer from any illegality. The Tribunal was therefore fully justified in dismissing the Original Application.

The writ petition is dismissed accordingly.