Shri K.B. Kumar vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 1282 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner by the present petition assails the judgment dated 1.10.1997, passed by the Central Administrative Tribunal, Principal Bench, New Delhi dismissing O.A. No. 679/92. The Tribunal held that there was no ground to interfere with the order dated 21.3.1991, dismissing petitioner from service.

2. Facts leading to the filing of the present petition may be noted:

(i) Petitioner joined Military Engineering Services (M.E.S.) on 15th January 1962. He received promotions in due course. Petitioner was last serving as Surveyors Assistant Grade I in the office of Garrison Engineer (Project) No. 3, Delhi Cantt, when the penalty of dismissal from service was imposed, vide Ministry of defense Order Dated 21.3.1991. Earlier, simultaneous proceedings were initiated against seven officers including Petitioner. Dr. P.K.Bandopadhyay was appointed as the Inquiry Officer, who submitted his report on 31.8.1990 in respect of petitioner and others.

(ii) The charge against the seven officers stemmed out of the execution of the contract for "Provision of external water supply and sewage disposal at Hissar Cantt." The allegation against the petitioner is failure to do proper technical check on the issue of cement to contractor resulting in falsification of contractual documents and misappropriation of cement. The two articles of charge framed against the petitioner were:

Article 1: That the said MES-223016 Shri K.B. Kumar while functioning as SA I in the office of GE(P) Hissar from August 80 onwards was responsible for proper technical check of RARs/Final Bills of CA No. CWE/PM-36/81-82-Provn of water supply and sewage disposal at Hissar. That the said Shri K.B. Kumar has technically checked 17th RAR and Final Bill of the above CA in which 300 bags of cement were issued under schedule 'B' as per USR No. E-485543 dated 17th February 83 and had been recovered from the contractor on the 16th RAR dated 23rd February 84 but the figure of 300 bags of cement was amended to 1300 bags of cement with relevant figures of amount of Rs. 4,563.00 to Rs. 19,973.00 and its recurring total from Rs. 2,04,771.15 to Rs. 2,19,9754.00 in the schedule B recovery statement of the above CA thus giving back dated effect of issue of 1000 bags of cement to the contractor. The said Shri K.B. Kumar also failed to exercise proper technical check to the cement store calculation register which has resulted in falsification of contractual documents and mis-appropriation of 1000 bags of cement.

Thus the said Shri K.B. Kumar failed to maintain absolute integrity and devotion to duty thereby violating the provisions of Rule 3(1)(i) and (iii) of CCS (Conduct) Rules, 1964.

Article 2: That the said MES 223016 Shri K.B. Kumar while functioning as SA I in the office of GE (P) Hissar from August 80 onwards was responsible for proper technical check of RARs/Final Bills of CA No. CWE/PM-36/81-82-Provn of water supply and sewage disposal at Hissar. That Shri K.B Kumar has technically checked RAR (16th RAR) and final RAR(17TH RAR) of the above CA and allowed the payment of Rs. 1,53,418.15 after completion of Phase II on 21st March 1983 which work was neither catered for in the contract agreement nor in the admn. approval/technical sanction. Thus the said Shri K.B. Kumar has failed to exercise proper technical check thereby resulting in irregular payment of Rs. 1,53,418.15 and has not maintained absolute integrity and devotion to duty which act on his part tantamount to violation of the provisions of Rule 1(1)(i) and (ii) of CCS (Conduct) Rules, 1964.

(iii) The inquiry officer in his report dated 31.8.90 found that the 1st charge against petitioner was proved partly. Relevant extract from para 6.84 of the inquiry report is reproduced for facility of reference there is no clinching proof to categorically conclude about the misappropriation of 1000 bags of cement by the CO, interpolation in the documents has been proved. It is quite strange that the interpolation/tampering of documents did not bother Shri K.B. Kumar and he had already concluded that it was meant for correction. This is not a sound logic and by applying the test of preponderance of probability his connivance in the matter cannot be ruled out. To this extent at least the article I of the charge stands proved.

2nd charge against the petitioner was not proved vide paras 6.87 and 6.88 of the report.

(iv) That aggrieved by the findings of the inquiry officer and subsequent order of dismissal of service, the petitioner submitted a review petition in terms of Rule 29 of the CCS (CCA) Rules to the President of India on 10.4.91. It was rejected vide Ministry of defense order dated 20.2.1992 holding "whereas the president on consideration of the review petition, is satisfied that Shri K.B. Kumar has not brought about any new evidence or material facts warranting reconsideration of the penalty imposed upon him.

3. Petitioner filed OA No. 679 of 1992 before the Central Administrative Tribunal seeking inter-alia quashing of order dated 21.3.91, imposing the penalty of dismissal from service and order dated 20.2.1992 rejecting review petition. He also sought reinstatement in service in the post of SA-I with all consequential benefits. The OA was dismissed vide judgment dated 1.10.97. Aggrieved by the dismissal of OA the petitioner has preferred the present writ petition.

4. Writ petition had come up for admission on 10th September, 1998 when it was directed to be listed before a bench of which one of us (Manmohan Sarin, J) was not a member. Rule D.B. was issued subsequently on 14th September, 1998 on hearing the counsel for the petitioner Mr. A.K. Sikri, Senior Advocate since elevated to the Bench. We may observe at this stage that this petition was directed to be listed before another Bench since at the relevant time, Mr. A.K. Sikri, Sr. Advocate was not appearing before Manmohan Sarin, J. In the event, Justice A.K. Sikri was elevated to the Bench and the petitioner had engaged Mr. G.D. Gupta, Sr. Advocate, who kept on appearing for the petitioner. However, on 2nd November, 2006, petitioner had appeared in person and argued his own matter. Vide orders dated 9th November, 2006, certain clarifications were sought from the Department. Hearing in the matter was concluded by this Bench on 2nd November, 2006 and after obtaining the requisite clarifications and giving the parties opportunity to file written submissions, judgment was reserved on 23rd February, 2007.

After the judgment was reserved, order dated 10th September, 1998 came to the notice of the Bench. Accordingly, the matter was directed to be listed for directions. On 6th July, 2007, the factual position, as noticed earlier in para 4 was brought to the attention of the petitioner and counsel for the respondent. Petitioner and counsel for the respondent both requested the Bench to proceed ahead with delivering the judgment , as they had no objection whatsoever to this Bench dealing with the matter, and appreciated that the order dated 10th September, 1998 was passed in the circumstances, in which the matter was directed to be listed before another Bench.

5. Petitioner has assailed the judgment of the Tribunal as also the findings of the Inquiry Officer on numerous grounds. Petitioner contends that Disciplinary Authority has passed a non speaking order and not dealt with various points raised in his representation dated 12th November, 1990. The substance of the charge levelled against the petitioner was failure to exercise proper check on the Bill of quantity of cement and detect falsification of documents which resulted in misappropriation and fabrication. However, the charge of connivance for which penalty of dismissal from service had been imposed on the petitioner, was neither in the charge sheet nor in the imputation of charge. The Disciplinary Authority while agreeing with the findings of the Inquiry Officer came to the conclusion that Article 1 of the charge was partly proved inasmuch as the petitioner should have acted on the interpolation and tampering of the documents by showing issuance of 1300 bags in lieu of 300 bags actually issued. Petitioner contends that there was no accusation of connivance. Besides neither the Inquiry Officer nor the Disciplinary Authority had brought out any evidence as to the persons with whom the petitioner had allegedly connived. Petitioner contends that it was a case of no evidence against him and there had been no finding or reasoning given for holding the petitioner guilty of connivance and which imputation/accusation which was also not part of the charge sheet. Petitioner also alleges that there has been violation of principles of natural justice inasmuch as the Cement Calculation Register, Cement Issue Register and Contract Drawings which were cited in support of the charges were not produced during the course of inquiry. He urges that the Tribunal, therefore, wrongly came to the conclusion that non supply of these documents had not caused any prejudice to the petitioner. The non production of these documents resulted in the Inquiry Officer not being able to reach any objective finding or conclusion regarding alleged misappropriation of 1000 bags of cement and fixing responsibility for the same. Petitioner, very vehemently, urged that the Inquiry Officer, Disciplinary Authority as well as the Tribunal had failed to appreciate the nature of duties and responsibility of the petitioner. These were primarily confined to technical checking and verification of the amounts. The primary responsibility for execution of the work, preparation and approval of the bills, payment and final approval lay elsewhere. Petitioner was neither responsible for execution nor making the entries in the register regarding issuance or consumption of cement. It was not even the case of the respondents that any interpolation or falsification had been done by the petitioner. Petitioner was only being accused of failure to do proper technical checks and detect the interpolation and fabrication. The issuance of cement was the duty of the Executive Officer and the staff deputed at the site. Petitioner's job was at the desk only. Curiously, petitioner points out that if it was the case of the respondent that 1000 bags had been issued in excess and interpolation carried out then action would have been initiated for recovery of the excess bags from the contractor or alternatively proceedings would have been initiated for sub standard or defective work for using less cement. Neither of these eventualities had occurred. Petitioner next contended that even if the charges against him were proved, it would have been at best a case of negligence. The Disciplinary Authority further aggravated the error of the Inquiry Officer by holding the petitioner guilty of the alleged charge of connivance though not levied against him. Not only this, punishment of dismissal from service, levied on him was clearly excessive and grossly disproportionate to the charges levelled. Petitioner had unblemished career of over 30 years which had been stigmatized for no fault of his. Petitioner further urged that although the inquiry against the petitioner and others was a common inquiry, he had been subjected to invidious discrimination. Petitioner has submitted the following by way of an illustrative chart showing the status with regard to other charged officers/officials:

(i) Mr. C.S. Sandhu, Assistant Engineer (Building & Roads) was the Engineer-in-Charge and whose duty was to get work executed at site. Mr. Sandhu was the person responsible for preparing the 17th (final) RAR and Final bill against the said contract and signed all the relevant documents including Schedule `B' recovery statement in which USR No. E.485543 dated 17th February, 1984 of 300 bags of cement was falsified to 1300 bags of cement with relevant figures of amount were also correspondingly changed. As per the charge, Mr. Sandhu was stated to be responsible for falsification of contractual documents and misappropriation of 1000 bags of cement. Mr. Sandhu was not only exonerated by the Inquiry Officer but by the Department also. He was then promoted as Executive Engineer. In other words, the person who is stated to be accused of falsification of accounts, has been exonerated while the petitioner who is accused of connivance with the said persons was dismissed from service.

(ii) Mr. Begh Raj, who was employed as Superintendent B/S Grade-I in Garrison Engineer was accused of tampering with the USR and falsification of ledger in connivance with the said BSO and Shri I.J. Verma, Store Keeper by showing issue of 1300 bags in lieu of 300 bags actually and physically issued to the contractor. He was also accused of amending the Gate pass for 1300 bags in lieu of 300 bags. The Inquiry Officer held the charge to be proved. He was dismissed from service. The Tribunal reinstated him with all consequential benefits treating absence period as on duty. SLP filed by the respondent was dismissed by the Supreme Court. He has been promoted as Barrack Store Officer (BSO). Petitioner raised the plea of exoneration of Begh Raj and relied on the judgment of the Tribunal in the said case. The Tribunal, however, did not accept the plea holding that the evidence adduced by the respondents in the case of Begh Raj would not apply to the facts of the petitioner's case as each of the applicants had been dealt with separately by the Inquiring Officer/Disciplinary Authority. We may note that this was a case where common evidence had been led and the above reasoning of the Tribunal is erroneous.

(iii) Petitioner then referred to the case of Shri B.P. Dinkar, Executive Engineer against whom seven charges had been levied. He was exonerated by the Inquiry Officer and then promoted as Superintendent Engineer.

(iv) The position is uncertain in respect of Subedar V.P. Swatch who had come from Army and any action would have been taken by the Army.

(v) & (vi) Shri J.S. Kaushal has since then expired. Shri S.K. Gupta, Unit Accountant who had the duty to check/audit Running Account Receipts (RAR) and final bills etc was not even issued a charge sheet by MES Department. He was the employee of Controller defense Accounts.

6. From the foregoing, it would be seen that as per the petitioner, the persons who were allegedly the main perpetrators had gone scot free while the petitioner had been handed over the severest punishment of dismissal from service for alleged connivance.

7. Learned Counsel for the respondents Ms. Rekha Palli in response to the submissions made by the petitioner, has reiterated the factual position on which we need not dwell any further. The substance of the allegation against the petitioner was failure to exercise proper technical check to the cement store calculation register resulting in falsification of contractual documents and misappropriation of 1000 bags of cement. Second charge has not been proved. Ms. Palli submitted that the Tribunal after perusal of the original records, had reached a finding regarding interpolation in the relevant RAR regarding the bags of cement from 300 to 1300 and changes in the amount as alleged in the charge sheet. While the petitioner had objected to the non availability of cement site register, various statements had been made available to him to avoid any prejudice. It was the petitioner's own case that he was not required to check the cement site register. The Tribunal reached the finding that petitioner was not bothered about interpolation which was a clear reflection on the way the technical check was carried out. As per preponderance of probability, his connivance could not be ruled out. She urges that the Tribunal had rightly, while bound by the limitation of judicial review, disposed of the matter after satisfying itself that the officer was given fair treatment. Counsel submits that petitioner as a Surveyor Assistant was duty bound to do technical check as per MES Regulation and Standing Order which included checking of issued quantities as RAR No. 16th, 17th and final bill had been signed as technically checked by the petitioner. Counsel further submitted that this court would not interfere with the finding whether petitioner's negligence in failure to do the technical check had been established or not. Not only this, the Inquiry Officer based on the attendant circumstances, recorded the findings regarding connivance.

8. We have considered and noticed the rival contentions, pleas and the factual position as claimed by the petitioner and the respondents. We find on consideration and analysis of the material on record and the impugned judgment of the Tribunal that the Tribunal grossly erred in not noticing that Articles 1 and 2 of the charges and the imputation mentioned therein were at best related to failure to carry out technical checks allegedly resulting in falsification of accounts and interpolation. The record does not in any manner show that petitioner was directly or the person primarily responsible for creation of those documents or interpolation. The charge of connivance was not even levied in the charge sheet. However, the Disciplinary Authority held him guilty of the charge of connivance without any findings with regard to the persons with whom he had connived, their respective roles and the action to be taken. Petitioner had also claimed violation of principles of natural justice inasmuch as documents which had been relied on by the respondents were not made available to him on the ground that petitioner had not used them during the discharge of his duties. Further that no prejudice had been caused to the petitioner by their non furnishing of these documents. The above pleas of respondents are untenable.

9. The above factors would themselves be sufficient for vitiating the proceedings against the petitioner. Petitioner also alleges discrimination in treatment. It is correct that Article 14 is not to be applied as a negative covenant and an erroneous order in a case or mistake cannot confer any legal right on another person to claim parity. However, in the instant case, the position is different. A joint common inquiry was conducted and the persons who were primarily responsible for the execution of the contract and for preparation of documents wherein the alleged interpolations were made, have all either been exonerated or given reprieve by the Tribunal as in the case of Shri Begh Raj, while the petitioner, the charge against whom at best could be of negligence and failure to detect the interpolation etc., has been visited with punishment of dismissal from service.

10. Curiously as pointed out by the petitioner in the case of excess issue of cement following interpolation, steps would have been taken to recover cement from the contractor or make a claim in arbitration but these were not done which is suggestive of the hypothesis that what has been labelled as interpolation were amendments and corrections applied to rectify and reflect the actual position.

11. Be that as it may, the role of the petitioner could have at best been one of negligence. There has been no evidence produced regarding connivance with the perpetrators of alleged fraud. The petitioner, in the circumstances, could not have been visited with the extreme punishment of dismissal from service even if there was negligence or failure on his part to detect the discrepancy or the so called interpolation. We are, therefore, of the view that punishment imposed in this case is grossly disproportionate so as to shock the judicial conscience. Petitioner is already over 70 years of age and the other persons though facing common inquiry and evidence, have been set free or exonerated. This is a fit case where following the judgment in the case of Ranjit Thakur v. Union of India and Ors. reported at , it would be a futile exercise to remand the case back to the Tribunal. Petitioner during the course of hearing had already indicated that he would be amenable if the respondents were to remove the stigma and the punishment meted out to him is reduced from one of dismissal to compulsory retirement as on 21.3.1991 with post retiral benefits being made available to him from the date of compulsory retirement. Further, he would also not claim any interest on the retiral benefits.

In view of the foregoing discussion, we set aside the order of the Tribunal and the Disciplinary Authority, dismissing the petitioner and modify the order to one of compulsory retirement as on 21.3.1991 with all post retiral benefits as on 21.3.1991. The above retiral benefits be paid within four months. Petitioner would not claim any interest on the retiral benefits.

Petition stands allowed in the above terms.