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Judgment
This is the second round of litigation in relation to the disciplinary proceedings that were initiated against the applicant in the year 1999.
The applicant is an Engineer in CPWD. In the year 1997, he worked as Assistant Engineer (Civil), PWD Division No.XI (NCTD). A charge memorandum was issued to him on 12.10.1999 by the Ministry of Urban Development, alleging that he committed irregularities in the context of issuing of cement bags for the works in the Tihar Jail. The applicant submitted representation dated 22/25.10.1999, denying the charges. The inquiry officer submitted his report on 06.02.2001 holding that the charge against the applicant was not proved. The disciplinary authority proposed to differ with the finding, and issued a disagreement note in this behalf. After taking the explanation submitted by the applicant into consideration, the disciplinary authority has taken the view that the article of charge is proved, and came to a tentative conclusion to impose a penalty of reduction of pay by two stages for a period of two years, without cumulative effect. The case was referred to the UPSC for its advice, as required under law. The UPSC tendered its advice on 20.11.2002, and the disciplinary authority passed order dated 28.01.2003 imposing the punishment of reduction of pay in the time scale of pay by two stages for a period of two years, without cumulative effect.
The applicant filed OA No.1277/2003 before this Tribunal, challenging the order of punishment. One of the contentions advanced by him was that the advice tendered by the UPSC was not made available to him. The OA was dismissed on 28.06.2004. The applicant filed a writ petition, W.P. (C) No16104/2004, before the Delhi High Court. The writ petition was allowed through order dated 19.01.2007. It was held that non-supply of the advice tendered by the UPSC resulted in denial of an opportunity to the applicant to make effective representation in his defence. The order of punishment was set aside, and a direction was issued to the respondents to furnish copy of the advice tendered by the UPSC to the applicant, and he was permitted to make a representation. A direction was also issued to pass fresh orders, duly taking into account, the representation which the applicant can make. The respondents carried the matter to the Hon‟ble Supreme Court in Civil Appeal No.6717/2008, and the same was dismissed through judgment dated 22.05.2014.
The respondents furnished a copy of the advice tendered by the UPSC to the applicant, and he was permitted to make representation. On consideration of the representation dated 15.02.2015 submitted by the applicant, the President imposed the same punishment as was imposed earlier, i.e., reduction of pay by two stages for a period of two years, without cumulative effect, through order dated 30.03.2015. The same is challenged in this OA.
The applicant contends that the directions issued by the High Court and the Hon‟ble Supreme Court to furnish copy of the advice tendered by the UPSC, was not an empty formality, and though a detailed representation was made in this behalf, the respondents did not take that into account. It is pleaded that the inquiry officer recorded a clear and definite finding that the charge against the applicant is not proved, and despite that, a disagreement note was issued, and thereafter the present punishment was imposed.
The respondents filed a counter affidavit, opposing the OA. According to them, copy of the advice of the UPSC was furnished to the applicant, as directed by the High Court, and affirmed by the Supreme Court, and the representation made by the applicant was taken into account before the impugned order was passed. The various contentions urged by the applicant on merits of the matter referring to the details of the inquiry report, are also dealt with point by point, in the counter affidavit.
We heard Shri B. K. Barera, learned counsel for the applicant, and Shri Rajiv R. Rai, learned counsel for the respondents.
It is almost two decades ago, that disciplinary proceedings were initiated against the applicant. The allegation in the charge memorandum date 12.10.1999 read as under:
"Shri R. P. Singh while functioning as Assistant Engineer (Civil), PWD Division No.XI (NCTD) during March-April, 1997 was in-charge of the work "C/o Jail No.6A of Tihar Jail, New Delhi, SH: C/o residential and non-residential buildings including security grill and internal water supply & sanitary installations" executed under agreement No. 3/E.E./PWDXI/DA/96-97. During surprise checking of the cement balances for this work by a team of officers from the Vigilance unit on 01.04.97, the following lapses were found to have been committed by the said Shri R. P. Singh:
Article-I
(a) 540 bags of cement were got issued for the above stated work from the Central Stores on 31.3.97. The said Shri R. P. Singh allowed Shri N. K. Sarin, Junior Engineer to issue 89 bags of cement within 24 hours of receipt of the cement from the Central Stores without giving any written permission to the Junior Engineer and without authenticating the said issue of cement, thereby violating the instructions contained in para 3(d) of memorandum No. DGW/CON/67 dated 6.5.94.
(b) Out of the above stated lot of 540 bags of cement of "Superplus Jaypee" brand, 82 bags of cement were found short which had been pilfered with connivance of the said Shri R. P. Singh, Assistant Engineer.
By the above acts of omission and commission, the said Shri R. P. Singh, Assistant Engineer failed to maintain absolute integrity and exhibited lack of devotion to duty thereby contravening Rules 3(1)(i) and 3(1)(ii) of the CCS (Conduct) Rules, 1964."
On denial of the charge by the applicant, a departmental inquiry was conducted. In his report submitted on 06.02.2001, the inquiry office summed up his discussion as under:
"6.8 Now obviously question arose as to why CO being AE in charge of the work signed the Inspection Note where it was clearly implied that there was shortage of 34 bags of cement and 48 bags of Superplus Jaypee‟ cement received on 31.3.97 from the Central Store were replaced by same number of bags containing DLF Premium‟ cement which were not issued from the Central Store. Moreover, even if he signed the Note at the urging of EE(V) why did he not incorporate a brief note clarifying the position vis-à-vis actual use of 89 bags of cement viz. consumption of 82 bags out of 89 bags issued on 1.4.97 in the work when the vigilance team counted the bags during the second visit at the site after 5 PM and collection of empty 82 bags by the labourers of the contractor most of whom left the work site after closure of work (except on one location) for the day : the version put forth by the CO.
There could be any number of explanation.
Perhaps there was pilferage of cement in connivance with CO as charged and CO being caught red handed by the vigilance team signed the Inspection Note being resigned to his fate but subsequently, as mentioned by PO in his briefs, concocted the story as narrated in his defence.
This could well have been the conclusion but for the various discrepancies, contradictions and lacunae in the prosecution evidence discussed earlier such conclusion could not be drawn.
However, the line of defence taken by CO even if it was a concocted story, one must concede that story was too well made and consistent with the reality. Not only that some of the crucial aspects of the so called story were supported by the prosecution‟s own witness (PW3).
Taking into consideration all the aspects discussed earlier the inevitable conclusion would be that CO‟s version fell within the realm of probability and evidence produced by the prosecution on account of various discrepancies, contradictions and lacunae could not seriously dent the credibility of CO‟s version enabling one to reject it.
In view of the above it would not be unreasonable to conclude that prosecution evidence was not strong enough to support the charges levelled against CO.
7.0 FINDINGS
In the light of the analysis and assessment of evidence set forth above charges against Sh. R.P.Singh, AE(C) were not proved."
The disciplinary authority took a tentative decision not to accept the finding, and accordingly a note of disagreement, together with the inquiry report was served upon the applicant through a memorandum dated 28.11.2001. On a consideration of the representation dated 18.12.2001 submitted by the applicant, the disciplinary authority decided to take the charge as proved. The disciplinary authority took a tentative decision to impose the punishment of reduction of pay by two stages for a period of two years, without cumulative effect. The matter was referred to the UPSC, which, in turn, gave its advice through letter dated 20.11.2002. An order of punishment was passed on 28.01.2003, imposing the punishment as proposed. The OA filed by the applicant challenging the order or punishment was dismissed by the Tribunal, but the writ petition filed by him was allowed by the Delhi High Court. The Union of India carried the matter to the Hon‟ble Supreme Court, which gave rise to a reported judgment in Union of India & others v R. P. Singh [(2014) 7 SCC 340]. The direction issued by the High Court to furnish copy of the advice tendered by the UPSC was complied with. The applicant submitted his representation on 15.02.2015. On a consideration of the same, the impugned order was passed imposing the punishment as proposed.
Strong effort is made by the learned counsel for the applicant to find fault with the very disagreement with the finding of the inquiry officer. We made it clear to him that the same is impermissible, in view of the outcome of the earlier round of litigation. The Delhi High Court and the Hon‟ble Supreme Court have tacitly approved all the steps in the proceedings, up to the stage of the tendering of advice by the UPSC. Therefore, it is not permissible for us to examine the legality or otherwise of any steps that preceded the tendering of advice by the UPSC.
Copy of the advice tendered by the UPSC is filed by the respondents. After taking into account the facts up to the stage of seeking its advice, the Commission opined as under:
"3.1 The Commission have examined the case records carefully and their observations are as under:-
3.2. Commission observe that a surprise inspection of cement store was conducted by the EE(Vig.) along with AE on the directions of SE(Vig.) on 01.04.1997 at 12.15 p.m. in the present of Shri R.P. Singh, AE (C) in charge of the work Shri Sarin JE (C) and a representative of the contractor. As per the cement stock register, the book balance of cement on 30.3.1997 was nil‟ and 540 bags of Superlus Jaypee‟ brand cement were received on 31.03.1997. The Commission also observe that during the surprise check it was found that 89 bags of cement were issued on 01.04.1997. There were 451 bags of cement in the Cement Godown, which tallied with the book balance. Though the Junior Engineer had signed the register for issuing 89 bags of cement, there was no signature of the contractor or his representative in token of having received the supply of 89 bags of Superplus Jaypee brand cement. However at the time of inspection there were 55 bags at the site comprising seven full bags of Superplus cement 43 full and 5 empty bags of DLF Premium brand cement. Shri R.P. Singh, CO, Shri Sarin, JE(C) and also the representative of the contractor signed this inspection report.
3.3 The Commission observe that it is clear from the records that as on 31.3.1997 there was no other stock of cement in the store 540 bags of "Superplus Jayee" brand cement received on 31.3.1997 and as per the records 89 bags of cement of "Superplus Jaypee"brand were issued by JE on 01.04.1997 which either in full or empty were required to be accounted for by the CO and other officials when the EE (Vig.) visited the premises at 12.15 hrs on 1st April,1997. However, on the site, the Vigilance team could find only 7 full bags of "Superplus Jaypee" brand cement and the remaining 82 cement bags of "Superplus Jaypee" brand were not accounted for by the CO. Apart from this the vigilance team found 48 bags consisting of 43 full bags and 5 empty cement bags of DLF Premium brand, though according to the records, the DLF Premium cement was consumed by 20.03.1997. Hence, there could be no DLF Premium brand cement available on 01.04.1997. Even if it is assumed, as contended by the CO that some bags of "Superplus Jaypee" brand cement were consumed in the construction activity since the morning of 1st April 1997 till 12.15 hrs at least the empty cement bags of "Superplus Jaypee" brand should have been available at the site, as some empty cement bags of DLF Premium brand were found. The CO has also not claimed that the empty "Superplus Jaypee" brand cement bags were disposed of before the vigilance team had inspected the site. It is, therefore, clear that the CO was not able to give any satisfactory explanation for the presence of 48 (43 full and 5 empoty cement bags of DLF Premium brand) and the absence of 82 cement bags of "Superplus Jaypee" brand at the site. As such, it is clear that 82 bags of "Superplus Jaypee" brand cement were not available at the construction site at the time of surprise inspection.
3.4 The Commission observe that though there could be some minor discrepancies in the evidence recorded by the IO or a minor lacuna in the inspection of the vigilance team as pointed out by the CO, the fact remains that the CO, as in charge of construction activities at Tihar Jail, failed to give a satisfactory account for the 82 bags of "Superplus Jaypee" brand cement issued to the site on 31.3.1997 at the time of surprise inspection conducted by the EE (Vig.) and his team on 1.4.1997.
3.5 The Commission observe that even in the absence of any clear evidence that pilferage has taken place with the connivance of the CO, the charge stands proved against the CO, Shri R.P.Singh to the extent that there was a shortage of 82 bags of "Superplus Jaypee" brand cement at the site of surprise inspection conducted by the EE(Vig.) on 1.4.1997 as brought out above.
In the light of their findings and after taking into account all other aspects relevant to the case, the Commission consider that the ends of justice would be met in this case if the penalty of reduction of pay by two stages in the time scale of pay of the CO for a period of two years without cumulative effect, is imposed on the CO, Shri R.P. Singh, for the grave misconduct as discussed above, They advise accordingly."
From this, it is evident that the UPSC has addressed various aspects of the matter in detail, and opined that the charge framed against the applicant can be taken as proved. It was also observed that even in the absence of any clear evidence that pilferage has taken place, the charge stands proved against the applicant to the extent that there was shortage of 82 bags of cement at the time of surprise inspection conducted on 01.04.1997. The UPSC expressed its view that ends of justice would be met if the punishment as proposed by the disciplinary authority is imposed.
During the course of the long hearing also, learned counsel for the applicant was not able to explain the shortage of 82 bags of cement. On the other hand, a reading of the depositions at various stages disclosed that the applicant was not able to explain the lapses on his part.
In his representation dated 15.02.2015, the applicant did not point out any legal or factual error on the part of UPSC in tendering its opinion. Instead he just expressed his disillusion about the report. The relevant portion reads as under:
"I am amazed and disillusioned to see as to how the Department succeeded to manipulate before the UPSC to hide the original Inspection Note and put up the altered/fabricated inspection Note and why/how it missed the sharp attention of UPSC that has not gone through the original record fully/properly.
I am baffled to peruse the UPSC‟s advice and therefore may I ask where are these 43 full bags of DLF Premium brand cement on record of inspection note on which basis the UPSC has derived its inference and given its illogical advice?
In view of the submissions made hereinabove, it is requested that the undersigned be exonerated of all the charges levelled vide charge sheet dated 10.10.1999 because the Inquiry Officer has not proved any charge against me and the Department has wrongly/unjustly penalized me on recommendation of UPSC‟s advice which was apparently prepared on fabricated documents.
The importance of perusal of original and correct documents to arrive at any conclusion which is most primary and paramount requirement need not be over emphasized which was certainly denied to UPSC to form its sound and correct opinion to tender its advice in such a vital matter involving the career of an officer. That is why it had erred in its judgment and gave its incorrect advice for which it can be blamed for since the correct documents were not made available to it.
This is to add that the undersigned had already submitted the representation on 27/2/2007 & 15/05/2007 to DG (W), CPWD against the advice of UPSC in compliance of judgment dated 19/01/2007 of the Hon‟ble High Court Delhi in W.P. No.16104/2004."
It would have been possible to find fault with the impugned order of punishment if only any material fact or question of law was raised by the applicant and it is alleged that the disciplinary authority did not take the same into account. We are of the view that no illegality has taken place in the course of passing the impugned order.
We do not find any merit in the OA. The same is accordingly dismissed. There shall be no order as to costs.