ORDER
K.N.K. Karthiayani, Member (A)
1. The applicant herein is presently working as General Manager (Marketing and Admn.) in the office of the Chief General Manager, Telecom, Karnataka Circle, Bangalore. He has filed this 0.A. with a prayer to quash and set aside the charge sheet dated 13.8.2003, the punishment order dated 17.1.2004 and the appellate order dated 24.5.2005.
2. The brief facts of the case as in the O.A. are: While the applicant was working as Deputy General Manager (Operations) in Vijayawada Telecom District of Andhra Pradesh Telecom Circle, during 1999-2000, he chaired a Tender Evaluation Committee (TEC for short) which met on 10.11.1999 to negotiate with the tenderer and to make recommendations on the demands made by him for supply of motor vehicles on hire basis. The committee was set up by the General Manager, Vijayawada Telecom District (TD). The committee had recommended an increase of Rs. 3.50 in the rates which were provisionally offered to the tenderer and the same were accepted by the Competent Authority. On 13.8.2003, the first respondent issued a charge memo under Rule 16 of CCS (CCA) Rules, 1965, asking the applicant to submit his representation within 10 days from the date of receipt of the memorandum. The charges levelled against the applicant were:
(i) Chaired the TEC on 10.11.99 to make recommendations on the demands-of the tenderer (Though ordered by the GMTD VJ) after the issue of acceptance letter to the tenderer, Sri S. Ravikumar, in breach of the rule 20.1.16.6 of the CPWD Manual Vol. II.
(ii) Entertained and considered the condition of the tenderer Sri S. Ravikumar, submitted after the communication of acceptance of the tender.
(iii) Considered, negotiated and recommended on 10.11.99, the demand of the tenderer Sri S. Ravikumar, for increase in the accepted rates in view of the hike in diesel prices announced by the Government, in deliberate violation of the Clause 27 of the tender schedule which specifies that the rates quoted should be inclusive of any future hike in diesel prices and inspite of the Audit objection regarding the same in previous tender, and in violation of the Clause 33 of the tender schedule, in disregard to the Item 4 of the ‘Revised guidelines to committee for evaluation of tender (CET)’ vide DOT letter No. 3-6/93-MMT, dated 9.5.94 and Rule 426/1 of the P&T Manual Volume II, which stipulates that “any document which has an impact on the price of the bidders and which is submitted by the bidder after opening of the tenders should not be considered and should be ignored.
(iv) The said actions of the said Sri R. Chandramouli, resulted in showing undue favours to a particular tendered Sri S. Ravikumar, in matters of evaluation of the tenders, much to the disadvantage of the department and to the disadvantage of the other participants in the tender thereby making the tender process devoid of any sanctity, accountability, transparency, prudence and ultimately responsibility in utter disregard to the tender conditions and to the extant rules and guidelines envisaged in the P&T Manual Vol. II and CPWD Manual Vol. II.
A copy to the charge memo is at Annexure-Al. With the charge memo, the advice tendered by the Central Vigilance Commission was also annexed. The applicant submitted his representation dated 26.3.2004, a copy of which is at Annexure-A2. However, the Disciplinary Authority imposed the punishment of reduction of pay by one stage in the time scale of his pay for 6 months without cumulative effect on the applicant vide memorandum dated 17.11.2004 (Annexure-A3). A copy of the advice of the UPSC dated 26.10.2004 was also annexed to the memorandum at Annexure-A3. The applicant submitted a Memorial to the President of India vide representation dated 15.2.2005 praying for remission of penalty, a copy of which is at Annexure-A4. The representation was rejected on the ground that there was no new material or evidence on record which was not available to the Disciplinary Authority at the time of passing the said order and which has a potential to change the complexion of the case. A copy of the rejection memo dated 24.5.2005 is at Annexure-A5.
3. The applicant has prayed for quashing the impugned orders at Annexures-A1, A3 and A5 on the following factual and legal grounds:
(i) The tender has not been finalised on 10.11.1999 when the committee conducted negotiations with the tenderer. Violation of Clause 27 will result only after the accepted rate is finalised and agreed by both the parties and then sought to be changed.
(ii) The modified rates were lower than the quoted rates and much lower than the quoted rates of other tenderers. A disadvantage to the department would have arisen only if the committee had recommended and the Competent Authority accepted a rate higher than the rates quoted by the tenderer. The committee chaired by the applicant had not recommended an increase in the original tender rate of the tenderer but has only altered the counter offer which was not accepted by the tenderer and which cannot be forced on the tenderer.
(iii) The Rule in P&T Manual, Vol. II stipulates that any document which has an impact on the price of the bidders and which is submitted by the bidder after opening of the tenders should not be considered and should be ignored. In the present case no document which had any impact on the quoted rate of the bidder has been considered. The observations of the CVC are based on the wrong conclusion of the Department of Telecom, that changes were made after completing the tendering procedure.
(iv) “The UPSC has clearly stated that there was no lapse on the applicant in chairing the meeting and making the recommendations”. In view of the fact that the penalty imposed is the one recommended by the UPSC, it is to be concluded that the department had accepted the recommendations of the UPSC in toto. The action to the applicant in obeying the orders of the General Manager to make a fresh recommendation cannot be termed as misconduct, as Rule 3 of CCS (Conduct) Rules, 1964 specifically provides that when a junior officer obeys a written instruction of a higher officer, the junior officer cannot be charged with misconduct arising out of the senior officer’s direction. The UPSC has stated that the applicant should have politely declined to carry out the wrong instructions from the superior, i.e., the General Manager. There is no provision in CCS (Conduct) Rules, 1964, for such polite declining. Also, the General Manager’s action cannot be termed as incorrect and therefore, the question of the applicant refusing to carry out the orders did not arise.
(v) The Department of Telecom, CVC and UPSC have totally erred in not appreciating the fact that the tender was not finalised and it was in the negotiating stage when the applicant was asked to chair the committee and give his recommendation for modification of the counter offer made by the department.
(vi) If the General Manager had simply accepted the original quoted rate which was much higher than the rate recommended by the committee chaired by the applicant, there would have been no violation of any tender procedure!
(vii) A memorial submitted by the applicant to the President of India was not considered under Rule 29 of CCS (CCA) Rules, 1965.
(viii) The alleged misconduct occurred as early as in 1999. The charge memorandum was issued during August 2003 and there was undue delay on the part of the respondents. This delay is against the principle laid down by the Hon’ble Apex Court in State of M.P. v. Bani Singh 1991 SCC (L&S) 638, State of A.P. v. N. Radhakrishnan 1998 (3) SLJ 162 (SC) : 1998 (2) SCC (L&S) 1044; M.V. Bijlani v. Union of India 2006 (3) SLJ 184 (SC) : 2006 SCC (L&S) 919.
(ix) The decision of Hon’ble High Court of Delhi in Than Singh v. Union of India and Ors. ATJ 2003(3) 42, is applicable to the present case. Also, no enquiry was held to establish the charges in gross violation of principles of natural justice.
4. The respondents have filed their objections. The material facts like issue of charge sheet, memorandum of punishment order etc., have been admitted. The charge against the applicant which has been held as proved on the basis of the evidence on record is that, he being a very senior officer on the verge of promotion to Senior Administrative Grade in Indian Telecommunications Service Group ‘A’ failed to act as a responsible Government servant to safeguard the interests of the Government, while discharging his duty as Chairman of the Tender Evaluation Committee (TEC) which met on 10.11.99, in as much as he blindly followed the instructions of the General Manager Vijayawada Telecom District, without any application of mind and in violation of the rules and laid down procedures for the TEC. Pertinently, the then General Manager, Vijayawada Telecom District, and all other concerned officers, have been proceeded against departmentally for the lapses noticed on their part. There was no undue or intentional delay in the institution of the proceedings. An enquiry has to be ordered only if “the Disciplinary Authority is of the opinion that such enquiry is necessary”. In conclusion, the respondents have stated that there was no extraneous consideration to the evidence and the conclusion was not arbitrary or capricious and there was no infirmity whatsoever, in the procedure followed. The respondents have relied on the following judgments:
(1) State of Andhra Pradesh v. Sree Rama Rao .
(2) A.S. Sethi v. Union of India .
(3) State of Andhra Pradesh v. Chitra Venkata Rao 1975 SCC (L&S) 349.
It is also pointed out that the application is filed beyond limitation and it should be dismissed.
5. The applicant has filed a rejoinder reiterating the points averred in the O.A. Regarding limitation, the applicant stated that he had filed M.A. 221/06 adducing sufficient reasons for condonation of delay along with the O.A.
6. The respondents have not filed a separate objection to the said M.A. for condonation of delay. Considering the reasons adduced in the M.A., the M.A. is allowed and the delay of 79 days in filing the O.A. is condoned.
7. We have perused the pleadings and gone through the judgments cited in the O.A and the reply. We had also called for the concerned tender file, as there were repeated references to the “note” included with the tender submitted by the lowest tenderer. Instead of the tender file, the respondents have produced the Prosecution Documents in the Rule 14 proceedings against the General Manager, Vijayawada TD which include relevant notes and correspondence sheets from the tender file.
8. We do not agree with the applicant’s contention that there has been inordinate delay in finalising the proceedings. According to the respondents, the alleged irregularity committed in the year 1999 was thoroughly investigated after it came to light. In consultation with CVC charge sheet under Rule 16 was issued to the applicant on 13.8.2003. In the case of Bani Singh relied upon by the applicant, there was a delay of 10 years in taking action and in the case of Radha Krishnan, the delay was nearly 8 years. In the case of Bijlani, the Hon’ble Apex Court held that initiation of disciplinary proceedings after 6 years and continuance there of for a period of 7 years prejudiced the delinquent officer. In the case before us, there is no such inordinate delay as in the above cases cited by the applicant and we agree with the submission made by the respondents. We also do not agree with the applicant that an enquiry under Rule 14 should have been conducted. The same is not mandatory in the case of awarding any of the minor penalties under Rule 11(i) to (iv) of the CCS (CCA) Rules, but can be held if the Disciplinary Authority decides so. It is also not forthcoming as to whether the applicant had requested the Competent Authority to hold an oral enquiry.
9. Before we discuss the various issues raised by the applicant in reply to the charge-sheet and in the memorial to the President, which are further reiterated in the O.A, we make it clear that we are not appreciating the evidence that was before the Disciplinary Authority or the Appellate Authority which is prohibited by the law laid down by the Hon’ble Apex Court in State of Andhra Pradesh v. S. Sree Rama Rao and State of Andhra Pradesh v. Chitra Venkata Rao cited by the respondents (para supra). The principle laid down by the Hon’ble Apex Court in Sree Rama Rao’s case is that “if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed in a proceeding for a writ under Article 226 of the Constitution”. In Chitra Venkata Rao’s case, the Hon’ble Apex Court laid down that:
In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence, or had erroneously admitted admissible evidence which has influenced the impugned finding.
In accordance with the above dicta, we shall examine only whether the evidence on record was considered by the concerned, while issuing the impugned orders.
10. In the present case and the enquiry was not held under Rule 14 of CCS (CCA) Rules, the various guidelines laid down by the Hon’ble Apex Court to ensure that the laws of natural justice are followed are not applicable. However, the Disciplinary Authority is governed by the provisions of Rule 16(1)(c) and (d) which stipulate that “no order imposing one of the minor penalties shall be made, except after (c) taking the representation, if any, submitted by the Government servant under Clause (a) and the record on enquiry, if any, held under Clause (b) into consideration; (d) recording a finding on each imputation of misconduct or misbehaviour”. From the impugned orders passed by the Disciplinary Authority, it is seen that the said orders have been passed in violation of the above instructions. The various contentions taken by the applicant in the representation to the charge sheet have not been considered and there is no recording of finding on each of the misconduct and misbehaviour. A charge sheet under Rule 16 was issued to the applicant on the advice of the CVC. The CVC had erroneously refused to admit admissible evidence and had arrived at a finding that the explanations submitted by the concerned officers were not valid on the ground that “the note to the original tender schedule in which the tenderer reportedly raised these issues was not signed by the TEC members and there is nothing to show that this was placed on record. The minutes of the meeting also do not indicate that the tenderer raised these issues at the time that TEC held negotiations with him and L3”. As far as the applicant is concerned, this was the point that weighed on the CVC to recommend minor disciplinary proceedings against him. For, it was in Item 7 in the said “note” that the tenderer had mentioned that he was not agreeable to the conditions at 27.1 and 27.2 of the tender and he had asked for proportionate hike in diesel oil if any hike is announced by the Government.
11. In his reply to the charge sheet (Annexure-A2), the applicant has proved that the said note was part of the tender document inspite of the fact that it was not signed by the Tender Evaluation Committee. A perusal of the concerned file also vouches for the correctness of the submission made by the applicant in the representation at Annexure-A2. It is also seen from the advice of the CVC that while referring the matter to CVC for advice, the DOT had concluded that the decision to modify the terms after completion of the tendering procedure was against the laid down procedures. The applicant has proved beyond doubt in his reply to the charge sheet that the negotiations were made before completion of tendering procedure and the suggestion to increase the rate proposed by the first Tender Evaluation Committee was made before the tender was finalised. This fact is evidence from the various letters issued by the General Manager, Vijayawada Telecom District to the tenderer and the replies of the tenderer. We shall mention some of these communications here. In the letter dated 9.6.1999 issued after the first Tender Evaluation Committee made its recommendations on 10.5.1999, only an offer was made to the tenderer regarding the rates and other conditions. It is also stated that the rates have been provisionally approved. The tenderer was asked to deposit the prescribed security deposit and produce the original cash receipt failing which his tender was liable to be cancelled. Thus, there was no finality in the tender as only a rate which was lower than the rate quoted by the tender was offered to him among other conditions like overtime, daily bata etc. The tenderer, immediately on 10.6.1999, replied saying that the conditions were not acceptable to him. Again negotiations were made with the tenderer by the first Tender Evaluation Committee (which was not chaired by the applicant). Thereafter, on 18.8.1999, the tenderer asked the DOT to pay back his Earnest Money Deposit paid on 31.3.1999 and threatened that he would not be in a position to supply any vehicles to the Department after 22.8.1999. (Extension for the tender for supplying vehicles was upto 3.7.1999 and the department continued to use the vehicles on the old tender rates). Thereafter, on 23.8.1999, the tenderer withdrew the said letter, reportedly after discussions with the General Manager who had “shown concern” in settling the issue. The first TEC considered these points in its meeting held on 27 8.1999 and based on the recommendations, the department made a further offer to the tenderer on 5.10.1999. In the said letter it was mentioned that if the tenderer did not pay the security deposit before 11.10.1999, the department would be forced to take action against him as deemed fit. Subsequently on 11.10.1999, the tenderer requested to extend that time to pay the security deposit till the end of October. This was agreed to and on 25.10.1999, the tenderer was informed that he should pay the security deposit and submit all the documents before 1.11.1999. On 11.10.99 the tenderer had written another letter stating that on that day, the diese’ oil rate was hiked by 35% abnormally and it was very difficult for him to run the vehicles at the rate offered by the department (which was to be finalised). He had also mentioned that he was thankful to the department for giving provisional acceptance for the tender. Thereafter the DFA had advised that since the tender was not finalised the matter may be referred to the TEC to discuss all the issues involved and to arrive at a final decision. Based on the above advice the General Manager constituted another committee of which the applicant was designated as the Chairman. The facts mentioned above clearly show that the tender was not finalised when the applicant chaired the tender negotiation committee and made recommendations for hike in the rates. None of the points raised in the reply to the charge sheet is discused in the impugned memorandum (Annexure-A3).
12. The UPSC in their advice dated 26.10.2004 has also observed that there was no lapse on the part of the applicant as far as his chairing the TEC is concerned, (the first charge). Regarding the second charge also the UPSC observed that there was no lapse on the part of the applicant.
13. Regarding the third charge the UPSC has stated as below:
The CO was, nevertheless, expected to take into account that there is a specific clause in the tender schedule, binding the tenderer to quote the rates inclusive of future hike in diesel prices. Further, the incorporation of the clause was necessitated by an Audit para in respect of the same issue related to the tender for the previous year, where it was pointed out that the hike in rates in view of hike in diesel prices is not reasonable in the absence of a PV Clause in the lender. As such, the Commission are of the view that this charge is proved against the CO to the extent as discussed hitherto.
The Disciplinary Authority has blindly accepted the above finding without any application of mind. It is seen from the minutes of the meeting chaired by the applicant which is available in the file produced by the respondents that the committee had taken into account Clause 27 in the tender form which states that the rates quoted should be inclusive of any future hike in diesel. The committee concluded that the clause was a general clause and increase of price of diesel by around 34% could be construed as a very special case in the interest of natural justice and operational expenditure the tenderer has to face. It was also noted that the tender has been only provisionally awarded to Shri S. Ravi Kumar and no agreement has been signed so far, pending payment of security deposit. Thus, the committee has clearly noted that the tender was not finalised as such. The committee had recommended an increase of Rs. 350 over the proposed rates of Rs. 9400 and Rs. 10,000. The applicant has pointed out that the new rates recommended by the committee chaired by him were far less than the original rate quoted by the tenderer. Clause 27 in the tender form only stipulated that the tenderer should quote his rate taking into account the future hike in the cost of diesel and petrol. The argument advanced by the applicant is that only if the committee had recommended the rate higher than the rate quoted by the tenderer there would have been a violation of Clause 27 for, the tenderer was supposed to quote his rate keeping in mind future hike in diesel rates. This argument holds ground, for, if it was the case that the rate quoted was not inclusive of future hike in diesel rates, the first TEC should have rejected the tenders outright. The offer made by the department to the lowest tenderer after various negotiations was far less than the rates quoted in the tender and before the finalisation of the tender there was abnormal rise in the diesel rates. It was in this background that the tenderer refused to accept the rate proposed by the department and asked for considering further rise in the offer. Regarding the observation of the UPSC that the incorporation of the clause was necessitated by an Audit para, it would be apt to mention that the clause was not in accordance with the audit note. We had an occasion to peruse the audit note also in the concerned file of the department. The audit had pointed out that in the absence of price variation clause in the tender form, it was not correct to enhance the amount finalised in the tender. The said observation was made in the context of the department paying compensation for price escalation in respect of the previous tenderers. What has been incorporated as Clause 27 in the tender form is not strictly a price variance clause. The price variance clause should provide even for reducing the rate in case of a fall in the cost of petrol/diesel. This is done by many departments which regularly hire vehicles for their operational needs, like, the Postal Department. A price variance clause will be advantageous to the Government in as much as, as and when there is a fall in the cost of fuel (as it happens many times), the rate per km. can be proportionately reduced. On the other hand, if the tenderer is asked to quote rates keeping in view any future hike in diesel, the tenderer will be prompted to quote higher rates so as to absorb all the future hikes during the contract period irrespective of the fact that there may be a fall also in the fuel price. In any case, Clause 27 in the tender form was not any rule laid down by the Government. The committee chaired by the applicant had made detailed deliberations and calculations regarding the hike in the diesel rates which came into effect before the finalisation of tender but after a rate much less than the rate quoted was offered to the tenderer. It was also mentioned in the recommendations by the TEC chaired by the applicant that tenderer should be intimated in clear terms that no future increase in rates will be admissible under any circumstances during the currency of the tender. From the above, it is clear that the finding of the UPSC with regard to Charge No. 3 was not based on the facts and evidence on record. The Disciplinary Authority without any application of mind accepted the advice.
14. Regarding the 4th charge also, the UPSC has come to the conclusion that the applicant had gone out of way to accommodate the said tenderer by compromising the tender conditions in violation of the departmental rules and related instructions and, thereby making the tender process devoid of any sanctity, accountability, prudence, transparency and, consequently, causing financial loss to the department. It is also seen that with regard to the charges 3 and 4, the allegation is that the applicant has violated the guidelines in Rule 426.1 of P&T Vol. II and CPWD Manual Vol. II. The applicant in his reply to the charge sheet had given detailed reasons to deny the allegation. Neither the UPSC nor the Disciplinary Authority has taken into account the points raised by the applicant. It is not shown how the instructions contained in CPWD Manual Vo. II are applicable to Department of Telecom. Rule 426.1 of P&T Vol. II only stipulates that any document which has an impact on the price of the bidder and which is submitted by the bidder on opening of the tenders should not be considered and should be ignored. It is not clear from the advice of CVC or from the advice tendered by the UPSC how this rule has been violated by the applicant in as much as the applicant had not accepted any document after opening of the tenders, which had an impact on the price quoted by the bidder. It is an admitted fact that the tender rate quoted and finalised was much less than the price quoted by the tenders. The submission of the applicant (though made sarcastically) that if the original rate quoted was simply accepted by the General Manager, there could have been no violation of any tender procedure, holds some weight in the above context.
15. As already discussed, when the tender was not finalised, in as much as the tenderer had not accepted the provisional rates offered by the department which were far less than the quoted rates, there was no violation of Clause 27 of the tender clause in negotiating with the tenderer. Increasing the proposed rates in view of the 34% increase in the diesel rate which took place before the finalisation of the agreement did not violate Clause 27 of the tender, as long as the revised recommended rates were well within the lowest rates quoted by the tenderer in response to the original tender notification.
16. For the reasons discussed above, the impugned order of the Disciplinary Authority at Annexure-A3 is issued in violation of the instructions contained in Rule 16(1)(c) & (d) and hence it is liable to be quashed and set aside.
17. As regards the impugned order at Annexure-A4, the only ground on which the Memorial was dismissed was that there was no new material or evidence on record which was available to the Disciplinary Authority at the time of passing the punishment order. From the Memorial submitted to the President of India (appeal), it is seen that the applicant had countered the observations tendered by the UPSC in Paragraphs 4.1 and 4.5(iii). As the Disciplinary Authority had accepted the advice of UPSC in toto, the points raised in the Memorial against the UPSC’s advice should have been considered and discussed. Of course, the provisions of Rule 27, CCS (CCA) Rules will not be applicable in this case as there is no statutory provision for an appeal against the President’s orders. Annexure-A2 is issued in the name of the President. However, in any matter relating to disciplinary proceedings, which are quasi judicial in nature it is important and necessary to record reasons. The reason attributed to the rejection of the Memorial is not correct on the very face of it. Hence the impugned memorandum at Annexure-A4 is liable to be quashed and set aside.
18. The applicant has prayed that the memo of charges at Annexure-A1 dated 13.8.2003 may be quashed and set aside. In support of this prayer, he relies on the decision rendered by the Hon’ble Delhi High Court in Than Singh v. Union of India and Ors. (supra). In the above cited case, the Hon’ble Delhi High Court has laid down certain grounds under which the correctness or validity of the charge sheet can be questioned. There are:
(1) When it is not in conformity with law.
(2) If it discloses bias or pre-judgment of the guilt of the charged employee.
(3) There is non-application of mind in issuing the charge sheet.
(4) If it does not disclose any misconduct.
(5) If it is vague.
(6) If it is based on stale allegations.
(7) If it is issued malafide.
In the present case, the applicant argues that there was no application of mind in issuing the charge sheet in as much as the Disciplinary Authority and the CVC had proceeded on the wrong assumption that the negotiations were made after the tenders were finalised. Following the above judgment, the memorandum of charges at Annexure-Al is also quashed and set aside. In the result, the O.A. is allowed. No costs.