Union Of India & Anr vs Mohd. Salim Beg
2013 Latest Caselaw 4170 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                            Date of Decision: 16th September, 2013


+      WP(C) NO. 4161 OF 2012

       UNION OF INDIA & ANR.                     ..... Appellants
                     Through:        Mr.R.V.Sinha with Mr.A.S.
                                     Singh, Advocates.

                         versus

       MOHD. SALIM BEG                         ..... Respondent

Through: Mr.M.K.Bhardwaj, Advocate

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE S.RAVINDRA BHAT (Oral)

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. 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.

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.

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) SEPTEMBER 16, 2013 RN