A. Srinivasa Rao vs National Highways Authority Of India & Anr.

ORDER

"8 (a) Call for the relevant file(s)/record(s) of the respondents and peruse the same;

(b)

Declare the impugned Memorandum No.11019/2007/2015-Admn(Pt)/(E 15977)/3235- Manual dated 12.12.2022 (Annexure-A-1 Impugned) as arbitrary, illegal, biased, result of non-application of mind and violative of Article 14 of the Constitution of India as well as Rules 14(3)(ii)(b) and 14(4)(a) of CCS (CCA) Rules, 1965 and therefore per se illegal and void ab initio;

(c)

Declare that the applicant is entitled for consequential relief in terms of prayers (b) above to the effect that the impugned charge Memorandum may be quashed with exemplary cost against the respondents and in favour of the applicant.

(d)

Award cost of this application and proceedings against the Respondents and favour of the Applicant.

(e)

May also pass further order(s) as be deemed just and proper to meet the ends of justice."

"The committee observed that there is huge variation between the quantities as proposed in the initial estimate and the sanctioned estimate / Agreement. The references made by the various authorities viz., Supreme Court Committee on Road Safety (SCCRS), State Government, Transport Commissioner of State etc., indicates that, the routine maintenance and Road Safety work were to be taken up by (PIU) NHAI, even after the completion of contract period of 12 months and till the stretch is taken up for Six-laning / TOT / Capacity Augmentation in May, 2017 / Jan, 2018 & May-Aug, 2018 respectively. Thus, the O&M under this contract for a period of 12 months was continued for 33 months and as such resulted in the increase of quantities of various items and hence the cost. It is noted that the Revised estimate has been prepared and submitted by PIU and the same was recommended by RO for approval of Competent Authority." According to him, another committee was constituted on 22.09.2020 by replacing one of the members of the previous committee which submitted its report on 07.10.2020. The same is reproduced below :-

"The committee observed that there is huge variation between the quantities as proposed in the initial estimate and the sanctioned estimate / Agreement. The references made by the various authorities viz., Supreme Court Committee on Road Safety (SCCRS), State Government, Transport Commissioner of State etc., indicates that, the routine maintenance and Road Safety work were to be taken up by (PIU) NHAI, even after the completion of contract period of 12 months and till the stretch is taken up for Six-laning / TOT / Capacity Augmentation in May, 2017 / Jan, 2018 & May-Aug, 2018 respectively.

Thus, the O&M under this contract for a period of 12 months was continued for 33 months and as such resulted in the increase of quantities of various items and hence the cost. It is noted that the Revised estimate has been prepared and submitted by PIU and the same was recommended by RO for approval of Competent Authority."

"Items as noted above has been varied astronomically but as per data provided by PIU that total length of median plantation during currency of contract was 211.44 km (median width 4.1 meter having kanner & Bhohanvalli as primary species of plantation), hence comparing the same in terms of maintenance manual requirement, the quantities as executed generally seems to be in order. Variation in items excluding those quoted above could be dealt with as per powers delegated vide circular 11041/218/2007-Admn dated 02.08.2016 and 18.24/2017 dated 21.08.2017 before approaching NHAI HỌ.

(3)

Elongation of existing contract period upto 18.01.2019 Original contract period of O&M was from 05.05.2016 to 04.05.2017 but RO in anticipation of mobilization of new 6-lanning and TOT contractor asked PD PIU-Vishakhapatnam to go chead with existing contractor to maintain the project highway in traffic worthy condition considering bare minimum requirement of items along with incident management. Same seems to be in order. Strip Chart is attached as Annexure-XL."

“(i)

Because the charge Memorandum is per se nullity and void ab initio in the eyes of law on account of non-compliance of the mandatory provisions of Rule 14(3)(ii)(b) and 14(4)(a) of CCS (CCA) Rules, 1965 (Annexure-A-7). Reliance is placed on the judgement of Hon'ble High Court of Delhi in order/judgement dated 11.09.2015 (Annexure-A-8) in WP(C) No.8726/2015 titled "Union of India Vs Shamim Akhtar", paras 12 to 15.

(vi)

Because Rule 3(2)(ii) of CCS (Conduct) Rules, 1964 provides that no Government servant shall, in performance of his official duties, or in exercise of powers conferred on him, act otherwise than in his best judgement, except when he is acting under the direction of his official superior. Therefore, no following the written orders of his superiors.

(vii)

Because the applicant has acted honestly and in good faith while discharging his duties as Custodian. It is submitted that the term 'good faith' is defined under General Clauses Act, 1897 as "a thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not". Thus, the action of the applicant cannot be termed as a 'misconduct' even the action of the applicant termed to be negligent or omission of any kind from discharge of his official duties.

viii) Because even in view of the law laid down by the Hon'ble Apex Court in "Union of India & Ors. Vs. J. Ahmed", reported in 1979(2) SCC 286, "State of Punjab & Ors. Vs. Ram Singh", reported in AIR 1992 SC 2188 and "Inspector Prem Chand Vs. Govt. of NCT of Delhi & Ors.", reported in 2007(4) SCC 566, the conduct of the applicant cannot be termed to be a 'misconduct.

(x)

Because the delay in initiation of the disciplinary proceedings in the case is unjustified and without any basis, particularly in view of the fact that once the applicant had submitted the representation against the suspension and the same was revoked with full pay and allowances with regularization of suspension period, there has not been any reason or material before the respondents to initiate the disciplinary proceedings and issue the impugned charge Memorandum but for their arbitrariness, biased approach and non-application of mind. The delay in initiation of disciplinary proceedings is vitiated in view of the declaration of law by Hon'ble Apex Court in "P.V. Mahadevan Vs. M.D. T.N. Housing Board", reported as (2005) 6 SCC 636.

(xvii)

Because the impugned charge Memorandum of the respondents is contrary to the principle of law declared by the Hon'ble Apex Court in "State of Punjab Vs V.K. Khanna & Ors", reported as (2001) 2 SCC 330, paras 24, 25, 33 & 38”

“19.

In Kuldeep Singh (cited supra) Honourable Supreme Court has held as follows:

"31.

Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness."

In Central Bank of India v. Prakash Chand Jain (cited supra) the following ratio was laid down:

"The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom enquiry is held and the statement made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles, which cannot be ignored..”

In S. B. Ramesh (cited supra) also the Honourable Supreme Court quoted with approval the order of the Tribunal, which gave the reasons to come to the conclusion that the order of the disciplinary authority was based on no evidence and that the findings were perverse. One of the grounds on which this order of the Tribunal was based was that the applicant in that case was not given an opportunity to cross examine the witness in support of the charge. The Tribunal had held thus in this case.

"Further, it is settled law that any statement recorded behind the back of a person can be make use of against him in a proceeding unless the person who is said to have made that statement is made available for cross-examination, to prove his or her veracity."

The Department of Personnel and Training (DoP&T) has also prescribed in Its OM No. 134/7/75-AVD.I dated 11.06.1976 (quoted in Swamy's Compilation of CCS CCA Rules, Swamy Publishers (P) Ltd., Thirty First Edition, 2007, page 63) as follows:

"Statement of witness recorded at the preliminary inquiry/investigation to be read out to him and got admitted as evidence-The present procedure followed in departmental inquiries held under the CCS (CCA) Rules, 1965, and other corresponding Disciplinary Rules is to disregard statements made by witnesses during the preliminary inquiry/investigation except for the purpose of contradicting the witnesses and to record the evidence of the witnesses de novo as examination- in-chief by the Inquiry Authority. The question whether statements made by the witnesses during the preliminary inquiry/investigation can be straightaway taken on record as evidence in examination-in-chief at oral inquiries has been examined in consultation with the Department of Legal Affairs, the Central Vigilance Commission and the Central Bureau of Investigation.

2.

On considering the observations made by the Supreme Court in certain cases, it may be legally permissible and in accord with the principles of natural justice to take on record the statements made by witnesses during the preliminary Inquiry/investigation at oral inquiries, if the statement is admitted by the witness on its being read out to him. It is felt that by adopting this procedure, it should be possible to reduce the time taken in conducting departmental inquiries. It has, therefore, been decided that in future, instead of recoding the evidence of the prosecution witnesses de novo, wherever it is possible, the statement of a witness already recorded at the preliminary Inquiry/investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. A copy of the said statement should, however, be made available to the delinquent officer sufficiently in advance, i.e., at least three days before the date on which it is it come up at the inquiry." (emphasis added)

20.

It is clear, therefore, that the witnesses have to be examined in the presence of the Applicant, who would be given an opportunity for cross examining them. We cannot accept the argument of the learned counsel for the Respondents that a statement recorded under Section 108 of Customs Act, 1962 could be produced in the enquiry without examining the witnesses.”

“12.

It is sought to be urged on behalf of the Petitioners that the impugned judgments run contrary to the well-settled legal position that a Court/Tribunal should necessarily not interfere with disciplinary proceedings at the stage of issuance of show cause notice. It is further submitted that the charges were grave in nature and that in these circumstances; the CAT ought not to have interfered "merely on the ground that a list of witnesses was not furnished to the delinquent along with the charge memo". Thirdly, it is submitted that the delay in initiating the disciplinary proceedings is by itself not fatal, unless it is shown that such delay has caused prejudice to the Respondents.

13.

The Court is not persuaded by any of the above contentions of the Petitioners. The Court notes that under Rule 14(3) & (4) of the CCS (CCA) Rules, it was incumbent, where the Government proposes to hold an inquiry, to draw the substance of imputations which would contain "a list of documents by which and a list of witnesses by whom, the Articles of Charge are proposed to be sustained". The said rule reads as under:

"14 (3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-

(i)

the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;

(ii)

a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-

(a)

a statement of all relevant facts including any admission or confession made by the Government servant;

(b)

a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.

(4)

The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person".

14.

Rule 14 (4) also envisages serving upon the Government servant the copy of the Articles of Charge which would include "the list of documents and witnesses by which each Articles of Charge is proposed to be sustained".

15.

The following observations in LIC of India v. Ram Pal Singh Bisen, (2010) 4 SCC 491 are relevant in this context:

"20.

Thus, the question that arises, for consideration is whether in absence of any oral evidence having been tendered by the appellants, and especially in absence of putting their own defence to the respondent during his cross examination in the Court, what is the effect of documents filed by appellants and marked as Exhibits. 21. Despite our persistent requests made to the learned counsel appearing for the appellants they have not been able to show compliance of Order XII Rule 1 and 2 of the CPC, meaning thereby that there has not been any compliance thereof.

26.

We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.

27.

It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law. Filing, of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do."

16.

Although, as pointed out by learned counsel for the Petitioners, in disciplinary inquiry proceedings the rules of the CPC and the Evidence Act may not strictly apply, it is basic that the mere production of a document is not sufficient even in a disciplinary inquiry. There has to be some witness to prove such a document. Without a witness to prove the documents, the Enquiry Officer cannot take it on record as a genuine document. In the present case in the absence of any list of witnesses, there was no means by which the documents could have been proved by the Department in the inquiry proceedings.

17.

In the present cases, if indeed the MoC refer to documents, the originals of which were not available with the Department, and the list of the names of the witnesses who were sought to be examined to prove the above documents, was not appended, clearly, the holding of the enquiry would itself become a mere formality. As rightly pointed out by the CAT, if in the absence of original documents and witnesses, an Enquiry Officer was to find the charges to be proved, such a finding would obviously be perverse and unsustainable in law. In other words, by allowing the disciplinary proceeding to continue on the basis of the subject MoCs, the Court or the Tribunal, as the case may be, would be effectively directing a wasteful exercise to be undertaken, which would end up being invalidated on obvious grounds.

18.

In that view of the matter, the Court is unable to agree that in the facts and circumstances at hand, it was impermissible for the CAT to intervene even at the stage of issuance of the MoC/show cause notice.”

“This was enunciated by Privy Council in the Nazir Ahmad v. King-Emperor, wherein if was held that "that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."