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2013 DIGILAW 1782 (DEL)

Union of India v. Mohd. Salim Beg

2013-09-16

NAJMI WAZIRI, S.RAVINDRA BHAT

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Judgment : S. Ravindra Bhat, J. 1. The petitioner is aggrieved by the order dated 9th November, 2011 passed by the Central Administrative Tribunal, whereby the respondent’s application questioning the penalty imposed upon him, was allowed. 2. Briefly stated the facts of the case are that on 17th August, 2006, the respondent was issued with the charge memo that he had not followed the prescribed instructions regarding making security arrangement through DGR sponsored agency and failed to point out the irregularities at the time of the approval by the Tender Opening Committee (TOC). The charge sheet alleged that a tender had been invited in March, 2002 in the name of ‘watch and ward arrangement’, despite receipt of instructions to make security arrangements through DGR sponsored agency. The further allegation was that the respondent failed to object to the calling of security guard through open tender and recommended constitution of TOC. 3. It was also alleged that he failed to point out the irregularities committed at the time of approval by the TOC. Based upon the findings recorded by the inquiry officer, the disciplinary authority as was required, forwarded the matter for consideration and opinion of the UPSC. UPSC on 25th May, 2010 advised that a penalty of censure, under Rule 14 of CCS (CCA) Rules, 1965 ought to be imposed. 4. In the circumstances, considering that there was a difference of opinion between the advice of the Central Vigilance Commission and UPSC, the case was referred to the Department of Personal & Training on 8th June, 2010. The latter advised that the recommendation of UPSC may be accepted. Consequently, on 1st September, 2010, the disciplinary authority accepted the advice and imposed penalty of censure. 5. The Tribunal, upon being approached, ruled in favour of the respondent holding that Rule 15 (2-A) of the CCS (CCA) Rules, 1965 had not been complied with. The findings in the impugned order also considered the merits of the charges and noticed that while the open tender had been floated in March, 2002, the respondent/officer joined the concerned office i.e. GMTD as DGM (A&P) Moradabad only on 15th April, 2002. The file was routed through him for constituting the TOC which was done on 24th April, 2002. 6. The file was routed through him for constituting the TOC which was done on 24th April, 2002. 6. Taking note of these circumstances and further facts which were brought on record, which were not disputed, (i.e. Officers concerned serving in other Telecom Circles i.e. Varanasi, Bareilly, Farukabad, Haridwar, Gorakhpur and Mau etc. had called for opening tenders in similar manner), the Tribunal reasoned that the findings against the petitioner before it were not justified. 7. It is argued by the learned counsel for the petitioners that the Tribunal fell into a grave error in holding that Rule 15(2-A) has been violated. It was submitted that the petitioner’s representation was duly considered and the advice of the UPSC sought on 13th November, 2009. It was argued that the Tribunal ought not to have concerned itself with the merits of the penalty, considering that it was the least prescribed under the Rules and was justified in the circumstances of the case. 8. This Court is of the opinion that the facts of the case speak for themselves. The respondent concerned joined the office much after the tender was floated. He has brought on record the fact (undisputed by the Union either before the Tribunal or here) that identical procedures were adopted by his counter parts in different circles. That apart, UPSC had discussed the aspect in para 3.2.8 of its advise and stated as follows:- “3.2.8 During general examination the CO’s comments regarding his failure to point out the irregularities in financial bid of the tender when the case was put up to be for Tender Evaluation Committee is not found satisfactory. The CO has further pointed out that other Telecom Districts had also invited tenderers in the same manner as was done in Moradabad District. The PO has submitted that reference of similar practice in other Telecom District is not appropriate. The CO forgets that he has not fulfilled his duties by not mentioning all the shortcomings of the tender on the file as a responsible and superior officer in the chain. Other clarifications by CO regarding this article of charge are also not found satisfactory and justifiable in view of the gravity of responsibility involved in the matter of tendering procedures at the level of such a higher post. Other clarifications by CO regarding this article of charge are also not found satisfactory and justifiable in view of the gravity of responsibility involved in the matter of tendering procedures at the level of such a higher post. 3.2.9 The Commission note that in his report the IO has failed to maintain absolute integrity, showed negligence in discharge of official duty and acted in a manner unbecoming of a Govt. Servant, thereby, contravened the provisions of rule 3(1)(i), (ii) and (iii) of CCS (Conduct) Rules, 1964. Therefore, the charge levelled against the CO is justified and hence proved. 4. The Commission also observe that there are some mitigating factors in favour of the CO such as the tenders had been floated before he joined the assignment. GM had approved it and other divisions had also floated tenders in the same way. 9. It was under these circumstances, that the Tribunal was of the opinion that the disciplinary authority which recommended and issued the penalty did not take note of the respondent’s representation and that if he had, the outcome could well have been different. 10. This Court, having considered the submissions of the parties, is of the opinion that the findings of the Tribunal cannot be faulted as being contrary to the facts or that it displays any perversity of approach as to warrant interference under Article 226. 11. In the circumstances, the petition is dismissed with no order as to costs.