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Judgment
ORDER
By Hon’ble Mr. Anand Mathur, Member (A)
Learned counsel for the applicants stated that applicant No. 1 was appointed as Assistant Engineer in Public Works (R&B) Department on 1.3.1993 and is at present posted as Executive Engineer Horticulture (P&M) Department, J&K. Applicant No. 2 was appointed as Assistant Engineer in the Public Works (R&B) Department on 31.12.2007 and is presently posted as Assistant Executive Engineer (AEE) J&K, Police Housing Corporation, Kashmir.
In the year 2015, applicant No. 1 was posted as Executive Engineer (R&B) Division 1st, Srinagar and applicant No. 2 was posted as Assistant Executive Engineer, Hazratbal, Srinagar.
Due to the devastating floods in September, 2014, its aftereffects continued to erupt thereafter and caused damage to both public and private property in Kashmir Valley. A phone call was received by applicant no. 1 from the District Development Commissioner (DC), Srinagar that the Minister of State Health (MLA, Hazratbal) was visiting Dalkawpora, Choudrybagh, Rainabari, Srinagar and asked him to reach the spot. Since the area of Dalkawpora, Choudrybagh, Rainabari, Srinagar fell into the jurisdiction of applicant No.2, he also joined applicant No.1 to inspect the area.
Applicants found that as an aftermath of the floods of 2014, Dalkawpora, Choudrybagh road had caved in at a few spots as the said road is situated on the bank of Dal Lake. In view of the dangerous and emergent situation created on the spot, the Hon’ble MOS Health and District Development Commissioner directed the Superintending Engineer (R&B) Srinagar to take immediate preventive measures on war footing and emergent basis.
In view of the aforesaid situation, it was not possible to invite even short term tender as e-tendering and the procedural delay would have caused more damage to public property and also further endangered the life and property of the local inhabitants.
Accordingly, applicant No. 2 contacted a registered PWD contractor who had been already alloted the work of face lifting and painting in the area. Applicant No.2 engaged the contractor on work order basis for construction of retaining wall to restrict further damage and to protect government and public property. The work was completed within the shortest possible time.
After several months, on some complaint, Anti Corruption Bureau, Kashmir took cognizance of the matter and did not find any pecuniary loss to State Exchequer and concluded that “The allegation of sub-standard material has not been substantiated, yet not putting the described work to any kind of tendering process is a gross violation of departmental procedure and undue favour to the contractor.” The ACB vide their letter dated 3.4.2019 recommended regular departmental action against the applicants.
Accordingly, respondent No. 2 served the Articles of Charge to both the applicants who filed their replies. Respondent No. 2 appointed Enquiry Officer to enquire into the allegations levelled against the applicants. The Enquiry Officer submitted his report vide letter dated 17.10.2019, in which he held as under:-
“On the basis of documents/information provided by Executive Engineer (R&B) Construction Division 1st Srinagar, It has been observed that after post floods of September, 2014, that the road from Dalkawpora to Chowdhary Bagh bridge was sinking at outer edges and there was an apprehension that the road may erode since the same is located on the fringe of the water body if not treated immediately. It was after urgent demand of the local residents and on the instructions given by the then MOS Health and Social Welfare (the then Hon’ble MLA) of Hazratbal constituency the work was executed immediately on war footing basis. The tenders for the work could not be invited in view of urgency and also to avoid any mishap or any untoward incident. In view of the above facts, it is recommended that the allegations levelled against both of the officers may be dropped.”
After considering the inquiry report, respondent No. 2 issued detailed speaking order dated 22.4.2020, which reads as under:-
“Now, therefore, in view of the above and recommendations of the Development Commissioner (Works), Inquiry Officer, the allegations levelled against Er. Asgar Ali Watali, the then Executive (R&B) Division 1st Srinagar and Er. Yasir Faiz Jan, the then Assistant Executive Engineer (R&B) sub Division, Hazratbal (Veri-No. SLK 63.2016) are dropped and regular Departmental Action is hereby closed. By order of the Government of J&K”.
With this the respondent was rendered functus officio.
Chief Engineer vide his letter dated 15.10.2020 clarified the issue and added that “A clause is also elaborated in the PWD Manual 2019 Chapter No. (1) General Provision at S. No. 1 namely as an Emergent works clause comprising from (i) to (x).
Even after clarification by the Chief Engineer, the respondents arbitrarily without any inquiry, in stark violation of Article 311 (2) of the Constitution of India and Statutory Rules, issued the following orders at the back of applicants causing grave prejudice, injustice and damage to their career and reputation, which is reproduced for ready reference:-
(i)Addendum No. PW (R&B) HRM/23/2019- Vig dated 13.7.2020 to Govt. order No. 152 PW (R&B) of 2020 dated 22.4.2020”.
“The engineers are warned to remain cautious in future while dealing with such kind works and adhere to the instructions in letter and spirit. The matter shall be kept in his service record and vigilance matter.”
(ii)Memo/ letter No. GAD (Vig.) 15- RDA/2019 dated 1.4.2021: (i) imposition of penalty Under Rule 30 (ii) imposition of penalty under Rule 30 (iii) withholding of three (03) increments in respect of Mr. Yasir Faiz Jan, the then Assistant Executive Engineer (R&B) Sub Division Hazratbal”. (iii) of withholding of three (03) increments in respect of Mr. Asgar Ali Watali, the then Executive Engineer (R&B) 1st Srinagar.
Learned counsel for respondents has filed an objection/ reply, in which it is stated that an inquiry was conducted against Sh. Asgar Ali Watali, the then Executive Engineer (R&B) Division- Ist Srinagar and Sh. Yasir Faiz Jan, the then Assistant Executive Engineer Division Hnzratbal. (R&B) Sub (Veri-SLK63/2016) for giving extension to the construction of Bund along Nallah at Chawadhry Bagh Rainawari & construction of road from Mohala Dalkawapora to Chowdhary Bagh Rainawari Srinagar without inviting tenders vide Govt. order No.425-PW{R&B) of 2019 dated 04.10.2019 by appointing the then I/c Chief Engineer R&B Kashmir Mr. Sami Arif Yesvi as enquiry officer.
The report furnished by the said committee was examined in the department and vide Govt. order No. 152-JKPW(R&B) of 2020 dated 22.04.2020 the case was closed. A copy of the said Govt. order was also endorsed to GAD among others who in turn vide communication No. GAD(Vig)15-RDA/2019 dated 23.06.2020, advised to clarify as to why no warming, as recommended by the Development Commissioner (Works), was issued to the delinquent Engineers while closing the RDA against them. In light of the observations of GAD, an addendum to the Gov. Order No. 152-JKPWR&B) of 2020 dated 2.04.2020 was issued bearing No. HRM/23/2019-vig dated 13.07.2020 asking the applicants to remain cautious in future while discharging their duty.
The departmental file on the subject was also referred to GAD as desired by the GAD. Thereafter, vide communication No.GAD(Vig)15-RDA/2019 dated 30.09.2020. the General Administration Department requested to clarify the following observations:
"The original work was for "face-lifting of Syed Meerak Shah Road from Ashaie Bagh Bridge to Zakoora Crossing by way of painting, electric pole, parapets, road marking zebra crossing etc. at the cost of Rs. 81,228/-. Subsequently, post-facto sanction was accorded to the extension of scope of work by the then Executive Engineer, Mr Asgar Ali Wattali for construction of retaining wall along road from Molullah Dalkawapora to Chowdhary Bugh Rainawari Srinagar for an amount of Rs. 10,33,565/-. The ACB report and enquiry conducted by the department clearly reveals that the work was not put to tendering. An Enquiry Officer appointed by the Public Works Department has concluded that extension in the work was done in view of the emergent nature of the work. The Development Commissioner, Works, in the Departmental file clearly pointed out that there has been gross violation of codal procedure by the officer by extending the scope of work in contradiction of the procedure. However, the Development Commissioner, Works has proposed closure of the case on the assumption that there was no loss to the State exchequer.
The issue for determination is whether extension of work from Rs. 81,000/- to Rs. 10,33,565/- can be ordered without tendering and whether there were provisions, which provide for such allotment of work in case of works of emergent nature, as is yet being projected in the instant case by Public Works Department. Closure order issued by the Public Works Department in this case has not made any mention of such a provision. In case, extension of scope of work has been done without availability of any express provision, a case of grass violation of codal formalities is made out and the matter cannot be closed by issuance of warning only".
That vide this department's letter No.PW(R&B)/HRM/23/2019- Vig dated 12.10.2020, the matter was taken up with Chief Engineer, PW(R&B) Kashmir. The Chief Engineer, PW(R&B) Department, Kashmir vide communication No. CE/RBK/ADM/15405 dated 15.10.2020 reported/ intimated that, after post floods of September 2014 the road from Dalkawpora to Chowdhary was sinking at outer edges and there was an apprehension that the road may erode, since the same is located on the fringe of a water body if not treated immediately. It was after urgent demand of the local residents and on the instructions given by the then Hon'ble MOS Health & Social Welfare (the then Hon’ble MLA of Hazratbal Constituency) the work was executed immediately on war footing basis. Tenders for the work could not be invited in view of urgency and also to avoid any mishap or any untoward incident. A clause is also elaborated in the CPWD Manual 2019 chapter No.(1) General Provisions at S.No.1.5 of S.No. 01 namely as Emergent works clause comprising from (i) to (x).
The response of the Chief Engineer, Kashmir PW(R&B) Department, was forwarded to the GAD vide communication No. PW(R&B)HRM/23/2019-Vig dated 26.11.2020. The General Administration Department vide Communication No. GAD(Vig)15-RDA/2019 dated 01.04.2021, intimated that the case was examined in the department and the Competent Authority has observed as under:
“…The action of the concerned officers in extending the scope of work involving painting etc. to cover construction of retaining wall is not justified and is akin to awarding work by picking a contractor from nowhere and awarding works without tender. Refuge is being taken behind urgency but this argument lacks conviction. The fact that there has been no loss to exchequer cannot be the reason for exonerating the Officer.
The terms and conditions of the award of work for construction of protection wall should ideally have been different both in terms of rates and timelines than already awarded work which was altogether different in nature and therefore, did not provide analogy for import of rates from original allotted works to new works.
The closure of RDA ordered by the PWD in terms of PW(R&B) Government Order No. 152-IK PW (R&B) of 2020 dated 22.04.2020 read with the addendum dt.13.07.2020 without penalty needs to be re-visited considering that gross violation of codal procedure has been clearly pointed out in the matter.
The officers have indulged in violation of codal formalities which amounts to misconduct for which imposition of minor penalty of withholding of increment as provided for in Rule 30(i) of J&k, Civil Services (Classification, Control & Appeal) Rules, 1956, would be penalty commensurate to the misconduct. In terms of Rule 33 & 34 of the CCA Rules, there is no requirement of issuance of notice prior to the imposition of this penalty."
and approved to impose the following penalties on the applicant and the other involved Engineer:
imposition of penalty under Rule 30 (iii) of 'withholding of three (03) increments' in respect of Mr. Asgar Ali Wattali, the then Executive Engineer (R&D) Division -lst Srinagar.
imposition of penalty under Rule 30 (iii) of withholding of three (03) increments in respect of Mr. Yasir Faiz Jan, the then Assistant Executive Engineer, (R&B) Sub-Division Hazratbal."
The R&B Department in compliance to the advice of the General Administration Department, in terms of Rule (ii) of the J&K, Civil Services (Classification, Control & Appeal) Rules, 1956, ordered imposition of the following penalties on the applicant and the other involved Engineer vide Government Order No.153 PW(R&B) of2021 dated 27.04.2021
i Withholding of three (03) increments in respect of Mr. Asgar Ali Wattali, the then Executive Lingneer (R&B) Division- 1st Srinagar.
withholding of three (03) increments in respect of Mr. Yasir Faiz Jan, the then Assistant Executive Engineer, (R&B) Sub-Division Hazratbal.
The department could not place the applicant against a higher post as the applicant has failed to produce Vigilance clearance from the Vigilance Organization now called Anti Corruption Bureau through GAD which is mandatory for placing a Govt. servant against a higher post.
The applicants have filed this O.A. for the following reliefs:-
quash memo issued under No. GAD (Vig.) 15- RDA/2019 dated 1.4.2021;
ii) quash the Addendum dated 13.7.2020 to Government Order No. 152 PW (R&B) of 2020 dated 22.4.2020;
iii) quash Govt. Order No. 153 (R&B) of 2021 dated 27.4.2021;
iv) quash OM No.GAD (Vig.) 02-NOC/2021-PW (R&W) dated 26.4.2021;
quash/ delete Para No. 3 of circular No. 45 GAD (Vig.) of 2014 dated 25.10.2014;
vi) Direct the respondent No.1 and respondent No. 2 not to disturb the seniority of the applicants notwithstanding the placement /elevation of their juniors as In-charge Superintending Engineer and In-charge Executive Engineer respectively as a consequences of the impugned orders of warning and stoppage of increments;
vii) Direct the respondents to promote the applicant No. 1 to the post of In-charge Superintending Engineer and promote applicant No. 2 to the post of In-charge Executive Engineer as per their placement in their respective seniority list.
In addition to that, learned counsel for applicants has also prayed for interim relief:-
To direct the respondent No. 1 and No. 2 to consider the applicant No. 1 for elevation /promotion as In-charge Superintending Engineer and to consider the applicant No. 2 for elevation to the post of In-charge Executive Engineer as per their placement in their respective seniority list.
In response to the order dated 11.2.2022 passed by this Tribunal, learned counsel for respondents filed a Supplementary Affidavit and replied to the query asked by this Tribunal.
In reply to the first query “Does GAD have the authority to suo moto call for disciplinary cases and impose a punishment thereon”, the respondents stated that the question in the facts and circumstances of the case is not whether GAD has the authority to suo moto call a case for disciplinary action and impose punishment. Instead it is whether the competent authority has power to reconsider the case and impose punishment. It is further stated that the PWD has forwarded a copy of Govt. order No. 152-JK PW (R&W) of 2020 dated 22.4.2020 to GAD for information and necessary action. The said order was examined in GAD and the matter was placed before the competent authority. The observations of the competent authority were conveyed to PWD (R&B) vide O.M. No. GAD (Vig) 15-RDA/2019 dated 1.4.2021.
In reply to the 2nd query, “Does GAD have the authority to spell out the exact punishment to be imposed?” respondents have replied that the observation and the approval of the punishment has been made by competent authority to the PWD (R&B) which is the mandate of GAD as all RDAs are mentioned and placed before competent authority by GAD (VIg.).
In reply to the 3rd query, “Whether the condition mentioned in the CVC order dated 1.4.2021 stating that Rule Nos. 33 and 34 do not require any notice to be given to the delinquent staff are applicable to the present case or whether the present case is governed under Rule 35 as per which a notice was certainly called for” , respondents replied that the requirement to serve a person with a copy of inquiry proceedings before imposition of penalty after excluding the recommendations of inquiry and to call for his reply as to why the penalty should not be imposed is where the proposed punishment is a major penalty like dismissal, removal or reduction in rank. There is no requirement for such notice where a minor penalty is to be imposed. The penalty imposed on the applicant is a minor punishment, as such the case falls within the ambit of Rule 35 of J&K CS (CCA) Rules, 1956, which does not require notice to be served before imposition of punishment.
We have heard both the learned counsel at length. From the perusal of records and the arguments put forth by the learned counsel for the parties, it is clear that in the present case, on a complaint, articles of charge were served upon the applicants. An Inquiry officer was appointed to inquire into the matter. The Enquiry Officer submitted his report, and dropped the charges levelled against the applicants. On the basis of enquiry report, respondent No. 2 issued a detailed speaking order and closed the regular departmental action against the applicants. Thereafter, without providing any show cause notice to the applicants, GAD has taken up the issue and imposed the punishment upon the applicants.
It is a settled principle of natural justice that any action which is to the detriment of an employee needs to be taken after affording him an opportunity to explain. In the instant case, the disciplinary authority had not imposed any punishment upon the applicants and had closed the disciplinary proceedings. However, the GAD disagreed with the findings of the enquiry officer and action of disciplinary authority and vide order dated 1.4.2021 directed the respondent No. 2 to impose the punishment of withholding of increment for three years. In pursuance of the order dated 1.4.2021 of respondent No. 3, respondent No. 2 issued order dated 27.4.2021 by virtue of which the applicants have been imposed with penalty of withholding of three increments. Further, vide order dated 26.4.2021 vigilance clearance has not been given to the applicants. Moreover, vide order dated 25.10.2014 GAD had issued the following guidelines regarding grant of vigilance clearance to the employees. Para 3 of which reads as under :
“3.Vigilance clearance will not normally be granted for a period of three years after the currency of the punishment if a minor penalty has been imposed on an officer. In case of imposition of a major penalty, vigilance clearance will not normally be granted for a period of 5 years after the currency of the punishment. During the period, the performance of the officer should be closely watched.”
The effect of the aforementioned direction would be that the applicants would not be given vigilance clearance for three years after the punishment of withholding of increments for three years is over. This means that they would be deprived of promotion for three years over and above the period of punishment itself. Prima facie, these administrative instructions deprive the employees of the benefit of promotion much beyond the period of punishment itself. We therefore feel that these instructions issued vide circular No. 45 GAD (Vig.) of 2014 dated 25.10.2014 need to be reviewed by the respondents.
In the case of Lav Nigam Vs. Chairman and MD. ITI, Ltd. 2006 Supreme Court Cases (L&S) 1835, the Hon’ble Apex Court observed as under:-
“11.In Punjab National Bank and others Vs. Kunj Behari Misra , a bench of this Court considered Regulation 7(2) of the Punjab National Bank Officer Employees’ (Discipline and Appeal) Regulations , 1977. The Regulation itself did not provide for the giving of any notice before the disciplinary authority different with the view of the enquiry officer. This Court held: (SCC p. 97 para 19)
“The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”
This view has been reiterated in Yoginath D. Bagde Vs. State of Maharashtra reported in 1999 SCC (L&S) 1385. In this case also Rule 992) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The court observed as under:-
But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of "not guilty" already recorded by the enquiring authority was not liable to be interfered with.”
In the case of Surinder Kumar Mittal Vs. State of Haryana 1999 (3) ATJ page 325, it was held that “before passing an order inflicting major punishment, it was necessary to serve a show cause notice accompanied by a copy of the enquiry report, which was not done in this instant case.”
From perusal of pleadings on record, it is also clear that the vide order dated 1.4.2021 respondent No. 3 directed the respondent No. 2 to impose the punishment of withholding of increment for three years and in pursuance of the order dated 1.4.2021 of respondent No. 3, respondent No. 2 issued order dated 27.4.2021 by virtue of which the applicants have been imposed with penalty of withholding of three increments, which is not permissible as per law laid down by the Hon’ble Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja and another Vs. State of Gujarat reported in (1995) 5 Supreme Court cases, 302, in which Hon’ble Apex Court has held that “Exercise of under direction or in compliance with instructions of some other person or authority, held amounts to failure to exercise the discretion altogether. The Hon’ble Apex Court in the aforesaid case has observed as under:-
“11.The case against the appellants originally was registered on 19-3-1995 under the Arms Act. The DSP did not give any prior approval on his own to record any information about the commission of an offence under TADA. On the contrary, he made a report to the Additional Chief Secretary and asked for permission to proceed under TADA. Why? Was it because he was reluctant to exercise jurisdiction vested in him by the provision of Section 20-A(1)? This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20-A(1) was not exercised by the DSP at all.
12.Reference may be made in this connection to Commr. of Police v. Gordhandas Bhanji, in which the action of Commissioner of Police in cancelling the permission granted to the respondent for construction of cinema in Greater Bombay at the behest of the State Government was not upheld, as the rules concerned had conferred this power on the Commissioner, because of which it was stated that the Commissioner was bound to bear his own independent and unfettered judgment and decide the matter for himself, instead of forwarding an order which another authority had purported to pass.
13.It has been stated by Wade and Forsyth in Administrative Law, 7th Edn. at pp. 358-59 under the heading "Surrender Abdication, Dictation" and sub-heading "Power in the wrong hands" as below' "Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise...."
14.The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of information under TADA in exercise of his discretion.”
Keeping in view the facts of the instant case and the case laws cited above, impugned orders dated 1.4.2021, 22.4.2020,13.7.2020, 26.4.2021 and 27.4.2021 are quashed. The respondents would be at liberty to proceed from the stage of issuing a show cause notice to the applicants accompanied by a copy of the enquiry report along with tentative reasons for such disagreement with the Enquiry Officer’s report and give the delinquent officers an opportunity to submit their replies to the same. After considering replies of the applicants, appropriate orders may be passed.
Respondents are also directed to review the contents of letter No. 45 GAD (Vig.) of 2014 dated 25.10.2014 as pointed out at para 6 above.
These actions shall be completed within six weeks from today.
Both the parties shall bear their own costs.