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2012 DIGILAW 1309 (GAU)

Jeetendra Bahadur Singh v. Union of India

2012-12-06

I.A.ANSARI, S.C.DAS

body2012
JUDGMENT I.A. Ansari, J. 1. By making this writ application, made under Article 126 of the Constitution of India, the petitioner, who, while serving as Executive Engineer, was awarded the penalty of censure, has put to challenge the order, dated 02.08.2010, passed, in Transfer Application No. 04 of 2009, by the learned Central Administrative Tribunal, Guwahati Bench, (hereinafter referred to as Tribunal), whereby the petitioner's application, seeking to get set aside and quashed the order, dated 20.09.2005, imposing penalty of censure, and also the order, dated 18.06.2006, whereby, upon review, the penalty of censure was maintained by the authorities concerned. By this writ application, the petitioner has also sought for directions to be given to the respondents to consider the petitioner's claim for regularization of his promotion to the cadre of Executive Engineer (Civil) along with his batch-mates in terms of the order, dated 05.04.2005, with all consequential benefits. We have heard Mr. U.K. Nair, learned counsel for the petitioner, and Mr. D. Chakrabarti, learned Central Government counsel, appearing for the respondents. 2. While the petitioner was serving as Executive Engineer (Civil), Telecom Civil Division, Silchar, Assam Telecom Circle, BSNL, he was served with a memorandum, dated 11.06.2001, informing him that action, under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as CCS Rules), had been proposed to be taken against him. The memorandum, so served on the petitioner, contained statement of imputations of misconduct or misbehavior, which, according to the disciplinary authority, warranted action against him in terms of Rule 16 of the CCS Rules. 3. The statement of imputation of misconduct or misbehavior, served on the petitioner along with the memorandum aforementioned, read as under:- Statement of imputations of misconduct or misbehaviour on which action is proposed to be taken against Shri J.B. Singh, formerly AEE (Civil), Telecom Civil Sub-Division. Gonda, and now EE(C), TCP, Silchar, Assam Telecom Circle, Guwahati. That the said Shri J.B. Singh, while functioning as AEE(Civil), TCD, Gonda, during the period from 21.06.1996 to 14.05.1997, was incharge of following sites of Civil works: 2. That it was incumbent on the said Shri J.B. Singh to exercise consistent supervision to ensure the qualify of the civil work and materials used are as per agreement and technical specifications on various sites. 3. That it was incumbent on the said Shri J.B. Singh to exercise consistent supervision to ensure the qualify of the civil work and materials used are as per agreement and technical specifications on various sites. 3. During surprise visit by the team of DOT, New Delhi and Civil experts, the following observations were made. (i) At Ruknapur site the work of modified 1 type-III quarter and compound wall amounting to Rs. 7.08 lakhs was in progress. There were 8000 bricks of mixed quality containing over burnt as well as deformed bricks. On visual appearance, it was observed that about 20 percent to 30 percent of total quantity of bricks of law quality were non-conforming to the agreement. The said Shri J.B. Singh has averted the same in his statement and Shri Prabhakar Misra, JE(C) has also corroborated the aforesaid observations in his statement. (ii) At Fakharpur site, about 8000 bricks were also found lying stocked at site. About 50 percent to 60 percent of these bricks were noticed to be of inferior quality and were being used in spite of the instructions of the SE(C) for not starting the work till the bricks of proper specifications were brought at site and got tested and approved for use during his visit on 30.4.97. Thus the said Shri J.B. Singh failed to comply with the order of the SE(C). (iii) At Hazurpur site, 12,000 defective bricks were lying which were rejected and ordered by XEN(C) for removal from site including 5000 bricks being unloaded which were also not of good quality as per specifications of CPWD. (iv) At Mahsi site, about 9,000 defective bricks were brought to the site, out of which about 10 percent to 15 percent bricks of the total quantity appeared to be over burnt, undersized and of deformed shape not meeting the CPWD specifications mentioned in the contract. (v) During visits of different kilns, it was gathered that the best quality bricks were available for Rs. 800 to Rs. 11,000/- per thousand. The contractors had quoted rates for bricks that varied from Rs. 1,200/- to Rs. 1,300/- per thousand including masonry work. Thus, it was the duty of the field staff, i.e. AEE(C), etc., to ensure best quality bricks from the suitable kiln. (vi) The Site Orders Book were found incomplete and instructions contained in Section 26 of CPWD Manual Vol-II also have not been followed. 1,200/- to Rs. 1,300/- per thousand including masonry work. Thus, it was the duty of the field staff, i.e. AEE(C), etc., to ensure best quality bricks from the suitable kiln. (vi) The Site Orders Book were found incomplete and instructions contained in Section 26 of CPWD Manual Vol-II also have not been followed. There was no entry at any site regarding visits/inspections by AE/XEN/SE/CE or other authority pointing out any deficiency or irregularity in work. The said Shri J.B. Singh has stated that no instructions/visits has been received by him from the superior officers except dated 21.04.97 from XEN(C) and dated 30A97 from SE(C). (vii) No deduction from the bills of the contractors has been recommended by the said Shri J.B. Singh for sub-standard works. (viii) Element of proper supervision and inspection of sites by the said Shri J.B. Singh were totally missing. (ix) The bricks were not got tested from laboratory before use in the construction work as required in the contract agreement. 4. Thus, this is evident from the observations given in foregoing para that the said Shri J.B. Singh failed to supervise the ongoing civil works and maintain the standard or quality of material and works according to prescribed specification as provided in Section 5.11.1 of CPWED Vo.II as well as contract agreement. He has also failed to maintain properly at all sites as required under Section 26 of CPWD Manual Vo.II and to recommend deductions of substandard work from the bills of the contractors with mala fide intention to extend pecuniary benefit to the contractor. 5. Thus, by his above acts, the said Shri J.B. Singh committed misconduct, failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government servant thereby contravening the provisions of Rule 3(1)(i), (ii) & (iii) of CCS (Conduct) Rules, 1964. 4. On receipt of the Statement of Imputations of misconduct or misbehaviour aforementioned, the petitioner submitted, on 23.8.2001, a representation, in his defence, against the said Statement of Imputations of misconduct or misbehaviour. In his representation, while dealing with Sub-Clause (iv) of Clause-3 of the statement of imputation of misconduct or misbehavior, the petitioner replied as follows:- As regards maintenance of Site Orders Book the following is clarified (a) The maintenance of site records is the responsibility of the JE(C) of the work. In his representation, while dealing with Sub-Clause (iv) of Clause-3 of the statement of imputation of misconduct or misbehavior, the petitioner replied as follows:- As regards maintenance of Site Orders Book the following is clarified (a) The maintenance of site records is the responsibility of the JE(C) of the work. The records were, however, checked periodically by the Inspecting officers, which were maintained as per provision of CPWD Manual and kept on site for visiting officers. (b) Entries were made in Site Orders Book by undersigned and JE(C) as and when required to the extent possible. However, due to tremendous works load under this Sub-Division, haying no any vehicle, constraint of Staff(only one JE) and also the pressure to ensure the speed (All cases being Minister cases), every instruction could hot be recorded in Site Orders Book. However, quality of works are ensured by inspections not necessarily by entries in Site Orders Book. Further, non-entry of instructions/observations in Site Orders Book also holds good in respect of the Engineer-in-charge of the work as well as other Senior Officers who visited the site. As per guidelines contained in CPWD Manual Vol-II, every inspecting officer, irrespective of his grade, is required to record his observation in the Site Orders Book/through inspection notes. No observation has been recorded by the inspecting officers, in spite of several inspections. This clearly substantiate the feet that the performance of the contractor and the quality of the work as well as raw materials brought at site were satisfactory. Hence, in view of the above facts, this charge is absolutely incorrect, baseless and untenable. 5. Since the petitioner's explanation was not found satisfactory, the Union Public Service Commission (hereinafter referred to as the Commission), by letter, dated 26.08.2005, conveyed to the disciplinary authority that the Commission, having taken into account the relevant aspects of the case, considered that ends of justice would be met if penalty of censure is imposed on the petitioner. 6. The reasons, assigned by the Commission for the purpose of coining to the conclusion that penalty of censure would meet the ends of justice, read as under: 7. 6. The reasons, assigned by the Commission for the purpose of coining to the conclusion that penalty of censure would meet the ends of justice, read as under: 7. The Commission further note that in their comments on the representation of CO, the DA has held that the charge of using sub-standard material cannot be conclusively established and by extension the other charge of not recommending deduction for sub-standard works also cannot be pressed against the CO. However, the charge of not ensuring proper maintenance of the is conclusively established, as the CO himself admitted to it citing reasons like constraint of staff, pressure of workload etc. 8. The Commission note that the defence put forth by the CO to the specific allegation of not maintaining the SOB, held as proved against him by the DA, is that the Gonda sub-division was spread out and had excessive amount of work and besides he did not have adequate engineering staff. He, however, contended that in spite of these constraints he did make frequent inspections of the sites to ensure that the works were carried out as per the agreements and specifications. CO also argued that maintenance of the site records is the responsibility of the JE. However, entries were made to the extent possible but due to tremendous workload and other constraints, the instructions could not be recorded. 9. The Commission note from the above that only the charge of not ensuring proper maintenance of Site Orders Book is held as conclusively established against him. With regard to this, the Commission note that the CPWD Manual Vol.II directs that every inspecting officer irrespective of his grade is required to record his observations in writing and they should invariably sign SOB. In this regard, from the photocopies of the documents they also note that although the SOB was maintained at branch, only few entries were made. The CO has admitted that due to pressure of work all the instructions given by his superiors could not be recorded in the SOB. Therefore, the Commission are of the view that the CO in spite of the reasons he gave to support his case, has been negligent in performing his duty. 7. Following the communication, dated 26.08.2005, aforementioned from the Commission, an order was made, on 20.09.2005, in the name of the President of India, imposing, on the petitioner, penalty of censure. 8. Therefore, the Commission are of the view that the CO in spite of the reasons he gave to support his case, has been negligent in performing his duty. 7. Following the communication, dated 26.08.2005, aforementioned from the Commission, an order was made, on 20.09.2005, in the name of the President of India, imposing, on the petitioner, penalty of censure. 8. Since the penalty, which was so imposed on the petitioner, was not appealable under Rule 22 of the CCS Rules, the petitioner made, on 15.12.2005, a representation by way of review. This review, too, was, however, declined by order, dated 18.10.2006. 9. The petitioner, then, filed a writ petition, under Article 226 of the Constitution of India, putting to challenge the penalty of censure imposed on him and also the rejection of his review application. The said writ petition was, in course of time, transferred to the learned Tribunal and came to be registered as Transfer Application No. 04 of 2009 and, it is against the decision rendered by the learned Tribunal, in the said Transfer Application by its order, dated 02.08.2010, that this writ petition, as indicated above, has been filed. 10. While considering the present writ petition what needs to be pointed out is that though there were three specific allegations made against the petitioner in the statement of imputation of misconduct or misbehavior, he was found guilty of only one of those three accusations. In order to make our observations, made hereinbefore, explicit, we re-produce, once again, para 4 and 5 of the said Statement of Imputation or Misbehavior: 4. Thus, this is evident from the observations given in foregoing para that the said Shri J.B. Singh failed to supervise the ongoing civil works and maintain the standard or quality of material and works according to prescribed specification as provided in Section 5.11.1 of CPWED Vo.II as well as contract agreement He has also failed to maintain properly at all sites as required under Section 26 of CPWD Manual Vo.II and to recommend deductions of substandard work from the bills of the contractors with mala fide intention to extend pecuniary benefit to the contractor. 5. 5. Thus, by his above acts, the said Shri J.B. Singh committed misconduct, failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government servant thereby contravening the provisions of Rule 3(1)(i), (ii) & (iii) of CCS (Conduct) Rules, 1964. 11. What can by gathered from para 4, re-produced above, is that according to the disciplinary authority, the petitioner had failed to supervise the ongoing civil works and maintain the standard of quality of material and works according to prescribed specification as provided in Section 5.11.1 of CPWD Vo.II as well as contract agreement. The petitioner had also, according to the disciplinary authority, failed to maintain Site Orders Book properly, at all sites, as required under Section 26 of CPWD Manual Vo.II and to recommend deductions of substandard work from the bills of the contractors with mala fide intention to extend pecuniary benefit to the contractors. 12. Admittedly, as far as the allegations of the petitioner's failure to supervise the ongoing civil works and to maintain the standard of quality of materials and works, according to prescribed specification as provided in Section 5.11.1 of CPWD Vo.II, as well as contract agreement are concerned, the same were found not proved. The petitioner was also exonerated of the allegation that he had not recommended deductions for substandard works from the bills of the contractors. 13. What had been, in the view of the Commission, found proved, was the allegation that the petitioner had failed to maintain Site Orders Book properly, at all sites, as required under Section 26 of CPWD Manual Vo.II, and to recommend deductions of substandard work from the bills of the contractors with mala fide intention to extend pecuniary benefit to the contractors. 14. The question, therefore, which arises for consideration before us is: Whether the petitioner's failure to properly maintain the Site Orders Book could be proved, as required by law, or not? 15. It is trite that reply to a charge, given by an employee, has to be considered as a whole and his admission, if any, has to be considered along with the explanation, if any, which he may have offered for making his admission. An admission may be qualified or it may be unqualified. 15. It is trite that reply to a charge, given by an employee, has to be considered as a whole and his admission, if any, has to be considered along with the explanation, if any, which he may have offered for making his admission. An admission may be qualified or it may be unqualified. When an admission is qualified, the admission cannot, in law, be treated as unqualified and has to be, therefore, read subject to the explanation, which an employee may have offered. Considered from the angle, as indicated above, it is of immense importance to note that the petitioner, in his reply to para 3 (6) of the said statement of imputation, did not state that he had not recorded the instruction received by him in the Site Orders Book. What he had stated was, "every instruction could not be recorded in the Site Orders Book", Assigning reasons for his failure to record every instruction, the petitioner also stated: Entries were made in the Site Orders Book by the petitioner, as and when required, to the extent possible. However, due to tremendous workload under his sub-Division, and having not any vehicle, constraint of staff (only one JE) and also the pressure to ensure the speed (all cases being minister cases), every instruction could not be recorded in the Site Orders Book. 16. The admission of the petitioner, therefore, that he could not maintain the Site Orders Book, ought not to have been read de hors the limitations, which he had mentioned as reasons for his failure to maintain the Site Orders Book. Surprisingly enough, the Commission, however, while taking note of the reasons assigned by the petitioner in justification of his failure to maintain Site Orders Book, did not record, in its findings, that despite the constraints, which the petitioner had mentioned, as indicated hereinbefore, the petitioner had not been disabled from properly maintaining the Site Orders Book, or that despite the reasons, which the petitioner had assigned, the petitioner could have, had he so wanted, maintain the Site Orders Book properly. 17. When a decision is reached by an administrator by taking into consideration any irrelevant fact or by ignoring a relevant tact, such an administrative decision, in either case, cannot but be held to be infirm. 18. 17. When a decision is reached by an administrator by taking into consideration any irrelevant fact or by ignoring a relevant tact, such an administrative decision, in either case, cannot but be held to be infirm. 18. In the case at hand, it was incumbent, on the part of the Commission, to either hold that the reasons, which the petitioner had assigned in justification of his failure to maintain properly the Site Border Book, were not true and correct or the Commission ought to have assigned reasons or, at least, made a remark that notwithstanding; the constraints and limitations, whereunder the petitioner had been functioning as Executive Engineer (Civil), he was still capable of maintaining the Site Orders Book if he had so wanted. No such finding was recorded, in its letter, dated 26.08.2005, by the Commission. It appears to have escaped the attention of the Commission that when an act cannot be performed by an employee for reasons beyond his control, he cannot be penalized for such an omission. 19. Coupled with the above, the Commission, in its observations, has recorded that the petitioner had admitted that due to pressure of work all instructions, given by his superiors, could not be recorded in the Site Orders Book. The observation, so made, as rightly pointed out by Mr. Nair, learned counsel, is not entirely in tune with the admission, if any, which the petitioner had made in his reply to the Memorandum, which had been issued under Rule 16 of the CCS Rules. What the petitioner had actually stated, if we may reiterate, was that the maintenance of site records is the responsibility of the JE(C) of the work. The records were checked periodically by the Inspecting officers, which were maintained as per provisions of the CPWD Manual and kept, at site, for visiting officers. The petitioner further stated that entries had been made, in Site Orders Book, by him and JE(C) as and when required and to the extent possible; however, every instruction could not be recorded, in Site Orders Book, due to tremendous workload under his Sub-Division, for, he had to function without adequate staff and vehicle and under pressure to ensure speed as all the cases were related to Minister; but, quality of works was ensured by inspections and not necessarily by making entries in Site Orders Book. The petitioner further stated that though, as per guidelines contained in CPWD Manual Vol-II, every inspecting officer, irrespective of his grade, was required to record his observation in the Site Orders Book, nothing had been recorded by the inspecting officers despite several inspections and the fact, that no observation had been recorded by the visiting officials, clearly substantiated the fact that the performance of the contractor and the quality of the work as well as raw materials brought, at sites, were satisfactory and, therefore, the charge was absolutely incorrect, baseless and untenable. Thus, the petitioner, nowhere, admitted that the instructions, given by his superiors, were not recorded by him in the Site Orders Book. 20. What, thus, clearly surfaces from the above discussion is that, while the Commission excluded from its consideration the reasons, which the petitioner had assigned for his failure to maintain Site Orders Book, the Commission took into consideration an aspect, which did not really form part of the reply of the petitioner. The conclusion, therefore, reached by the Commission, suffered from both, omission to take note of all the relevant facts and by the vice of taking into account a fact, which was non-existent. 21. As the decision, eventually, reached by the Commission suffered from complete non-application of mind, perverse in the sense that its findings were without any supporting material on record, but contrary to what the petitioner had contended in his reply to the Memorandum and the statement of imputation aforementioned. Sine the disciplinary authority acted mechanically on the advice, so given by the Commission, the impugned order, dated 20.09.05, imposing penalty of censure is, in the considered view of this Court, wholly incorrect, illegal and warranted interference by the learned Tribunal. 22. Coupled with the above, we may also note that the relevant part of the CPWD Manual, which deals with Site Orders Book, reads as under:- 26.2: Site Orders Book shall be maintained in the form prescribed in Appendix-37. The Site Orders Book shall be printed and its pages machine-numbered and issued by the EE in different sizes containing varying number of pages, depending upon the work. A fly-leaf should be attached with each Site Orders Book containing instructions regarding maintenance of Site Orders Book. The Site Orders Book shall be printed and its pages machine-numbered and issued by the EE in different sizes containing varying number of pages, depending upon the work. A fly-leaf should be attached with each Site Orders Book containing instructions regarding maintenance of Site Orders Book. These will be maintained properly and preserved for a period of 5 years or up to the time all disputes/arbitration cases of the work are finally settled, whichever is later after completion of a work in the same manner as a Measurement Book. The following procedure shall be followed regarding the maintenance of Site Orders Book (a) Whenever any senior officer gives verbal instructions to his junior officer at the site of work, it is necessary that he should confirm such orders in writing. In any case, it should be the writing. Though verbal orders have to be got confirmed in all cases, implementation of these verbal orders should not be delayed for want of confirmation. (b) Senior officers of the rank of Se and above shall communicate their observations by way of inspection notes. (c) While carrying out field inspections, the architects may point out architectural defects, through separate inspection notes and their observations shall be acted upon by field staff after proper examination from technical, contractual and financial angle. (d) So far as EEs and AEs are concerned, they should invariably sign Site Orders Book in token of their having read all the instructions issued by various officers and replies made thereto. In ease EEs or AEs themselves want to give any instructions, they should record them in the Site Orders Book. In regard to important matters, they may find it necessary communicate such orders even in writing in the form of inspection notes. (e) JEs should also record their observations in the Site Orders Book if they find any defective work going on or contractors not complying with the terms of contract. In places like Delhi, Kolkata and other places, where higher supervision is available, they should not, however, reject any work but communicate with the higher officers, if any defective work is required to be rejected. In outlying stations, however, they can, if they find it necessary, record their views in connection with the rejection of bad work as well. In places like Delhi, Kolkata and other places, where higher supervision is available, they should not, however, reject any work but communicate with the higher officers, if any defective work is required to be rejected. In outlying stations, however, they can, if they find it necessary, record their views in connection with the rejection of bad work as well. (f) Site Orders Book should be maintained on the site of works and should never be removed therefrom under any circumstances. (g) The contractors or their authorized agents will also be at liberty to note their difficulties, etc., in these books. (h) The compliance of orders/instructions given by the supervisory staff should be recorded side by side in the Site Orders Book by the JE/AE/AEE with dated initials and the date of compliance. (i) The Site Orders Book should invariably be consulted at the time of making final payments to contractors. (j) It has also been decided that the AEs/AEEs, as the case may be, should record the certificate on the Running Account Bills to the effect that the Site Orders Book have been consulted before signing such bills. This would enable the AEs/AEEs to ensure whether the defects pointed out during construction have been rectified or not, and also to reduce the rates, if necessary, before the running payments are made for the items of defects pointed out which have hot been rectified. (k) *** *** *** 23. The requirements, as prescribed by para 26.2 of the CPWD Manual, clearly show that a superior's instructions, if verbal, are to be confirmed by the superior, in writing, though, even verbal instructions are required to be followed by the Executive Engineers and Assistant Engineers. Para 26.2, nowhere, requires that an instruction, verbally given by a superior, has to be reduced into writing by the Executive Engineer and/or the Assistant Engineer. It is only when an Executive Engineer or Assistant Engineer wants to give any instruction, then, it is incumbent upon them to record such instructions in the Site Orders Book. The instructions given verbally, if any, by the officers, who were superior to the present petitioner, were not to be reduced into writing by the petitioner; rather, under the CP WD Manual, it was the duty of the superior officers to confirm such orders in writing. The instructions given verbally, if any, by the officers, who were superior to the present petitioner, were not to be reduced into writing by the petitioner; rather, under the CP WD Manual, it was the duty of the superior officers to confirm such orders in writing. This is yet another aspect of the case, which appears to have completely escaped the attention of the Commission as well as the disciplinary authority, while imposing penalty. 24. Though, referring to the case of Inspector Prem Chand vs. Government of NCT of Delhi and others, reported in (2007) 4 SCC 566 , Mr. Nair, learned counsel, contends that the allegations, as regards the failure to maintain Site Orders Book properly, even if treated to have been proved, the same cannot be considered as misconduct, we are not inclined to enter into this aspect of the case inasmuch as we are wholly satisfied that the charge, as regards omission to maintain the Site Orders Book, was not proved in accordance with law and the same, therefore, could not have become the basis for imposing penalty of censure or any other penalty. 25. As the above-mentioned aspects of the case, which we have pointed out, were not taken into account by the learned Tribunal, its decision, we hold, suffers from serious infirmities, both legal as well as factual. 26. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order, dated 02.08.2010, passed by the learned Tribunal, the order, dated 20.09.2005, imposing penalty of censure on the petitioner, and also the order, dated 18.10.2006, passed in the review petition of the petitioner, are hereby set aside and quashed. 27. Considering the fact that the penalty of censure has been set aside and quashed, we, in consequence thereof, direct the respondents to regularize the promotion of the petitioner in the post of Executive Engineer (Civil) w.e.f. 20.03.2005 and do the needful in accordance with law. 28. With the above observations and directions, this writ petition stands disposed of. No order as to costs.