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Judgment
O R D E R
Delivered by Hon’ble Mr. Anjani Nandan Sharan, Member-(A)
Heard Shri Ashish Dubey, learned counsel for the applicant and Shri Mahendra Prasad Mishra, learned counsel for the respondents.
By way of this original application the applicant has sought the following reliefs:-
“(i)The order dated 04.07.2014 passed by respondent no.3 imposing penalty on the applicant reducing to 2 stages lower in the time scale of pay for a period of one year may be quashed by this Hon'ble Court.
(ii)The services of the applicant may be treated to be continuous without considering the impugned penalty order dated 04.07.2014.
(iii)Any other relief which this Hon'ble Tribunal may deem fit and proper in view of facts of the case.
(iv)Award cost in favour of the applicant.”
Brief facts of the case are that the President initiated major penalty proceedings on 22.05.2009 against Shri M.Z. Sarvar, Joint General Manager (Director), Ordnance Equipment Factory, Kanpur under Rule 14 of CCS (CCA) Rules, 1965 on the following Articles of Charge:-
“Statement of Articles of charge framed against Shri M.Z. Sarwar, Jt. GM. Ordnance Equipment Factory, Kanpur.
Article-I
That Shri M.Z. Sarwar, while functioning as Jt.GM/OEF Kanpur, indulged in selective sampling of Flannelette Lining Brown 142(+/-) 1 cm In the firm premises of M/s India Rubberising & Allied Industries (P) Ltd., Kanpur against supply order No. 20070110/PV/LP/Tex dated 30.04.2007 for a quantity of 223995 mtrs. at the cost of Rs. 67,19,850. This was in violation of Standard Operating Procedure (SOP) of Quality which prescribes random selection of samples.
Article – II
That Shri M.Z. Sarwar, while functioning as Jt. GM, OEF, Kanpur, tried to get sub-standard materials cleared against the aforesaid Supply Order, through selective sampling at the firm's premises in collusion with the firm. The samples drawn by Shri M.Z. Sarwar did not match with the samples drawn by the bulk Inspection team and eventually the entire lot was rejected by the bulk inspection team.
Article – III
By the above acts of omission and commission, Shri M.Z. Sarwar, Jt. GM, OEF, Kanpur exhibited Lack of integrity & devotion to duty and acted in a manner unbecoming of a Government Servant in violation of Rule 3(1) (1), (ii) and (ill) of the CCS(Conduct) Rules 1964”.
On denial of charges by the applicant formal inquiry was conducted and the Inquiry Officer (I.O.) held the charges as not proved. The disciplinary Authority did not agree with the findings of Inquiry Officer and served the copy of Inquiry report alongwith Disagreement Memo and a copy of second stage advice of the Central Vigilance Commission to the applicant. After considering the Inquiry report, disagreement memo, representation of the applicant against it and all other relevant facts of the case, the President imposed following penalty on the applicant on 04.07.2014:-
“8.NOW THEREFORE, considering the nature/gravity of charges, the President/ Disciplinary Authority, in exercise of the powers conferred under Rule-12 of the CCS (CCA) Rules-1965, hereby orders for imposition of a Major penalty of "reduction to two stages lower in the time scale of pay, for a period of 1 year, with further directions that he will not earn the increments of pay during this period but ori expiry of this period the reduction will not have the effect of postponing future Increments of his pay", with immediate effect, on the said Shri M. Z. Sarwar, Jt.GM/Ordnance Equipment Factory, Kanpur.”
The applicant has submitted that while functioning as Joint General Manager (Director), Ordnance Equipment Factory, Kanpur he was nominated by the General Manager/OEFC on 02.01.2008 for drawl of samples against the firm’s challan for quantity of 25000 meters only as 11th lot. 13 samples were drawn randomly by the applicant and the report alongwith samples were given to the appropriate authority on the same day. The applicant did not violate any procedure because after submission of the report and samples neither the General Manager nor the Quality Control Officer had pointed out any irregularity or violation of any procedure. The duty of the applicant is merely to head the team taking the samples for further inspection by the Quality Control (QC) section. Sealing was done as per the procedure and practice and there was no report of violating any procedure. No loss was occurred to the government because of the material rejected in bulk. However, an inquiry was initiated against the applicant for the alleged misconduct or misbehavior under Rule 14 of Central Civil Services (CCA) Rules. On 22.05.2009 a memorandum was issued to the applicant containing the statement of imputation of misconduct or misbehavior. The applicant has submitted his explanation on 13.08.2009 stating therein that the charges leveled against him are devoid of facts/evidences.
It is further submitted by the applicant that a court of inquiry was conducted on 19.02.2013 against the applicant and it was found by the inquiry officer that the charges against the applicant are not proved. Again a memo was issued to the applicant on 02.12.2013 stating therein that the inquiry officer vide his inquiry report dated 19.02.2013 has submitted his finding that the Article of Charge I, II and III are not proved but the disciplinary authority disagreed with the findings of the inquiry officer and continued the proceedings against the applicant.
It is further submitted by the applicant that the applicant submitted his reply on 22.01.2014 against memo dated 02.12.2013. After considering the submission of the applicant an order dated 04.07.2014 has been passed by respondent no.3 holding the applicant guilty of misconduct by imposing penalty of reduction two stages lower in time scale pay for the period of one year. Order dated 04.07.2014 passed by respondent no.3 is illegal, arbitrary and malafide. Aggrieved by the action of the respondents the applicant has filed the present original application.
Per contra the respondents have filed their counter affidavit and submitted that the applicant while working as Jt. General Manager at Ordnance Equipment Factory Kanpur was deputed to collect samples at the firm's premises of M/s India Rubberising & Allied Industries (P) Ltd., Kanpur following random sampling as per prescribed procedure for laboratory testing of the samples, quality checks and also to keep the remaining complete offered material under the above said Challan in the well secured rooms called bond rooms duly locked and sealed. The samples brought by the applicant got passed in the laboratory testing and consequently the Quality Assurance Section of OEFC deputed bulk inspection team for inspection of defects and quantitative check of the entire offered quantity of the fabric under said challan. The bulk inspection team on finding the seal of bond room intact proceeded with the inspection, but it was found that instead of 355 bolts only 200 bolts were available in the above said bond room. Further, except BSS bolts no other bolt was having serial number and out of 200 bolts, only 11 bolts were having firm's name woven in the selvedge and also the shade of some of the bolts were not matching with the samples. The team informed about above mentioned anomalies to the Factory. On instruction of the factory, when they carried out the physical inspection of the entire quantity of the fabric offered under the above said challan, they found out that only 720 meters were acceptable. The above facts clearly show that the material offered for inspection by M/s India Rubberising & Allied Industries (P) Ltd., Kanpur was sub-standard, but the applicant deliberately indulged in selective sampling instead of random selection of samples as prescribed in the Standard Operating Procedure (SOP) of Quality in collusion with the firm with the intention to get the sub-standard material cleared against the aforesaid Supply Order. Accordingly, Charge-sheet under Rule 14 of Central Civil Services (CCA) Rules 1965 was issued to the applicant vide MoD Memorandum dated 22nd May, 2009.
Learned counsel for the respondents further submitted that the Disciplinary Authority after examining the report submitted by the inquiry officer tentatively decided to disagree with the findings of the inquiry officer and issued Disagreement note vide memo dated 02.12.2013. The applicant submitted his reply dated 22.01.2014 against the disagreement memo dated 02.12.2013. The Disciplinary Authority after giving careful consideration to the Charge memorandum, inquiry report, disagreement memo, the representation submitted by the applicant and also all other records relevant to the case, as per Rule 15(4) of CCS(CCA) Rules-1965, concluded that all the charges as mentioned in Charge memorandum were ‘Proved' against the applicant and accordingly, in exercise of the powers conferred under Rule-12 of the CCS(CCA) Rules-1965, imposed a major penalty of "reduction to two stages lower in the time scale of pay, for a period of 1 year, with further direction that he will not earn the increments of pay during this period but on expiry of this period the reduction will not have the effect of postponing future increments of his pay, with immediate effect on the applicant vide Order dated 04.07.2014. Learned counsel for the respondents submitted that all laid down procedures have been followed and raised preliminary objection regarding the maintainability of the original application.
In his rejoinder affidavit the applicant has reiterated almost the same facts, which have been given in the original application. In addition, it has been submitted by the applicant that the bond room and the seal was inspected by the bulk inspection team (BIT) very casually.
The applicant has further submitted that he was assigned the work of collecting samples only by following random sampling procedure, which was done with full devotion and sincerity by the sampling team. The complete material was to be checked by the bulk inspection team for visual defects, therefore, the applicant has not done any work beyond his assignment.
Submissions of the parties have been heard and documents available on record have been gone through.
It is seen from the records that Ordnance Equipment Factory, Kanpur had placed supply order for supplying of Flannelette Lining Brown 142(+/-) 1 cm on M/s India Rubberising & Allied Industries (P) Ltd., Kanpur on 30.04.2007 for the total quantity of 223995 mtrs. at the total cost of Rs.67,19,850/-. The firm offered the first lot of about 25,000 mtrs. of this fabric for testing/inspection. The applicant was deputed to collect samples at the firm’s premises of M/s India Rubberising & Allied Industries (P) Ltd., Kanpur following random sampling plan as per prescribed procedure, for laboratory testing of the samples, quality checks and also to keep the remaining complete offered material in the well secured rooms called bond rooms duly locked and sealed. The samples brought by the applicant got passed in the laboratory testing and consequently the Quality Assurance Section deputed bulk inspection team for inspection of defects and quantitative check of the entire quantity of the fabric.
The bulk inspection team found certain anomalies during inspection and they found out that only 720 mtrs. of fabric were acceptable, therefore, it was concluded by the respondents that material offered for inspection by the firm was sub standard. Since the applicant had been deputed for sampling, it was alleged that he indulged in selective sampling instead of random selection of samples as prescribed in standard operating procedure.
The inquiry officer concluded that it has not been conclusively proved that the applicant carried out selective sampling in collusion with the firm and also it has not been proved that the firm did not tamper the bond room and seal and changed the material, therefore, inquiry officer held all the articles of charges as not proved. However, disciplinary authority disagreed with the findings of the inquiry officer’s report on the basis of various infirmities found in the report of the bulk inspection team. The disciplinary authority also forwarded the case of the applicant to the Central Vigilance Commission for its advice, who have advised imposition of suitable major penalty on the applicant in agreement with the Disciplinary Authority’s tentative views. Accordingly, a copy of inquiry report alongwith dis-agreement memo and a copy of Central Vigilance Commission second stage advice was forwarded to the applicant for making his submission.
After considering all the relevant records and representation of the applicant the disciplinary authority has imposed the major penalty on 04.07.2014 as mentioned in para 4 above.
Records reflect that reasons for disagreement of the Disciplinary Authority with the Inquiry Officer are as under:-
Inquiry Officer’s Conclusion
(A)
It has been mentioned in the imputations & charges that only 11 bolts were found with firm's name woven in the selvedge. Whereas prosecution witnesses and prosecution documents have mentioned that 13 BSS bolts were found OK and having proper selvedge woven on them. Also prosecution witnesses have themselves mentioned at other places that in 90% of bolts (180 bolts) they found SI woven selvedge. Thus there is variation observed in the imputations and the prosecution documents/witnesses evidence.
Disciplinary Authority’s Disagreement
(A)
The charge memo (Annexure-II) mentions that out of 200 bolts found available in bond room, only 11 were bolts were having firm's name woven on the selvedges. The Prosecution Document (Ext. P-3), which is report dated 09.01.2008 of the bulk selvedge inspection team, mentions that 90% bolts available in the bond room were having "S.I." name woven in the selvedge, which is different from firm's name i.e. IRAI or IR&AI. This document does not mention the number of bolts having firm's name woven on the selvedge. During their depositions, the Prosecution Witnesses have confirmed that 13 bolts were having shade similar to samples but finally only 11 bolts, out of 13 BSS bolts, were found acceptable as other 2 bolts were having stains, cuts and weaving defects etc. Thus, there is no material variation in the charge memo, Prosecution Documents and depositions of the Prosecution Witnesses during inquiry; having any bearing on the charges on the CO.
Inquiry Officer’s Conclusion
(B)
In the present case, the following issues have been found to be materially important and cannot be ignored:
Presenting Officer has been able to establish that out of lot of 25000m offered for inspection, only 720m was accepted by the bulk inspection team.
Presenting Officer has also established that against 355 bolts which were sealed after the sampling, only 200 bolts were available.
(iii)Presenting Officer has also been able to establish that all the bolts other than BSS bolts were having no bolts number. It stands established that in more than 90% of the material, the selvedge did not contain the supplier firm's name. It is therefore, established that material found by the bulk inspection team was not matching with the BSS bolts except the 13 BSS bolts.
(iv)Presenting officer has also been able to establish that all the bolts, other than BSS Bolts, were having no bolts number.
(v)Further, it stands established that in more than 90% of the material, the selvedge did not contain the supplier firm's name.
Disciplinary Authority’s Disagreement
(B)
The facts mentioned by the IO, clearly establish that the number of bolts (350) as written by the sampling team (headed by the CO) was wrong. These facts also establish that out of total 200 bolts available in the bond room, only 11 bolts were cleared in the visual/touch inspection by the bulk inspection, which is less than even 13 BSS bolts from which samples were taken by the sampling team. These facts clearly brings out not only a case of selective sampling (by the sampling team headed by CO) but also non-checking of even BSS bolts properly the sampling, as 2 BSS bolts were also rejected due to stains, cuts and weaving defects etc.; which should to have been easily noticed by the sampling team.
Inquiry Officer’s Conclusion
(C)
It is therefore, established that material found by the bulk inspection team was not matching with the BSS Bolts except the 13 BSS bolts. For this to happen there can be three possibilities:
(i)The defendant carried out the selective sampling in collusion with the firm as alleged.
(ii)The material of the bond room was changed by the supplier firm without showing any apparent tampering signs in the bond room and the seal.
(iii)The bulk inspection team was in collusion with the firm.
(D)Presenting Officer has failed to establish beyond doubt that the defendant carried out selective sampling in collusion with the firm. The PO has also failed to prove that firm did not replace the material.
(E)However, possibility of bulk inspection team being in collusion with the firm appears rather remote since many people are involved and the discrepancies were pointed out by the bulk inspection team itself.
(F)This leads to only two possibilities at (i) & (ii) above. It is found that based on the case presented to the Court of Inquiry, it has not been conclusively proved that the defendant carried out selective sampling in collusion with the firm and also it has not been proved that the firm did not tamper the bond room and seal and change the material.
(G)Further, it pertinent to observe that no officer would risk his carrier by indulging in selective sampling in collusion with the firm, knowing fully well that material is to be subjected to the second round of inspection.
(H)The final conclusion of the Court of Inquiry is as under:
Charge-I: Not Proved.
Charge II: Not Proved, being derived charge from Charge-I. Further, nothing additional has been established by the prosecution to prove this charge specifically.
Charge III: Not Proved, being derived F charges from Charge-I. Further, nothing c additional has been established by the c prosecution to prove this charge specifically.
Disciplinary Authority’s Disagreement
(C), (D), (E) & (F)
The picture presented by the facts/ evidences available on record, on various possibilities listed by IO, is as under:
(i)Two parties will collude only when the arrangement is mutually beneficial to both of them. In this case, the action of bulk inspection team, in rejecting the material, was inimical to the interest of the firm and there was no reason for the firm to collude with bulk Inspection team for putting themselves to loss. Moreover, the IO himself condudes (in later part of the report) that possibility of bulk inspection team being in collusion with the firm appears rather remote. In addition, this is only a suspicion, without any evidence on record. All the 3 bulk inspection team members were produced as Prosecution Witnesses and if the Defence was having any suspicion then they could have been questioned on this, in their cross examination. But the Defence in the cross examination of the bulk inspection team members has not raised any such doubts.
(ii)Regarding the possibility of the material in bond room being changed by the supplier, without showing any apparent tampering signs in the bond room & the seal, the best persons to judge this will be the members of the bulk inspection team, who had verified these aspects before carrying out bulk sampling. The PW-1 was the team leader of the bulk inspection team and he has confirmed that (Ext. P-3 & during Inquiry) he has checked seal of the Bond Room and checked the Bond Room for verifying for any tampering; and after checking this only, the bulk inspection was carried out. Other bulk inspection team members have also given similar confirmations.
(iii)With the above two possibilities being ruled out, the only possibility explaining the happenings in the present case is the CO carrying out selective sampling in collusion with the firm as alleged. Here it is relevant to note that the CO himself, in his statement dated 20.04.2008 (Ext. P-4) has accepted that:
(a)He physically did not count the actual number of bolts in the bolt room, as the material was stuffed in the room and only a small space was available near the door.
(b)Before taking out samples he checked selvedge of some (10) bolts and found the marks woven.
The facts above clearly show that the check by the CO was not proper and because of space crunch to even walk in the bond room and inspect the bonds, the proper inspection was not possible also.
(G)IO's contention that "No officer would risk his carrier by indulging in selective sampling in collusion with the firm, knowing fully well that material is to be subjected to the second round of inspection' is only his personal opinion not supported by the facts/ evidences on record.
(H)The facts above, clearly brings out that the CO indulged in selective sampling and tried to get the sub-standard material cleared through selective sampling at the firm's premises in collusion with the firm. Due to this, out of 25000m fabric (valuing about Rs. 7.5 lakhs), which was cleared by the CO in sampling, only 720m fabric was finally found acceptable by the bulk inspection team. Thus, the CO exhibited lack of integrity & devotion to duty and acted in a manner unbecoming of a Govt. Servant. Hence, the conclusion of IO is not agreed and the charges at Article considered as Proved. I, II & III are tentatively considered as Proved.
In his reply to the disagreement memo, the applicant has reiterated his defence and stated that the allegation of selective sampling by him in collusion with the firm is without any evidence on record and is based on assumptions and wrong notions only. He again states that sampling team’s duty was only to select samples as per procedure, which was done with full sincerity, devotion and honesty.
From the above it is seen that the Inquiry Officer has himself observed as under:-
“The above mentioned details have all been thoroughly taken into consideration and assessed in depth. In the present case, the following issues have been found to be materially important and cannot be ignored.
Presenting Officer has been able to establish that out of lot of 25,000 Mtrs offered for inspection, only 720 Mtrs was accepted by the bulk inspection team.
Presenting Officer has also established that against 355 bolts which were sealed after the sampling, only 200 bolts were available.
Presenting Officer has also been able to establish that all the bolts other than BSS bolts were having no bolts number.
Further, it stands established that in more than 90% of the material, the selvedge did not contain the supplier firm's name.
It is, therefore, established that material found by the bulk inspection team was not matching with the BSS bolts except the 13 BSS bolts. For this to happen, there can be three possibilities:
1.The defendant carried out the selective sampling in collusion with the firm as alleged.
2.The material of the bond room was changed by the supplier firm without showing any apparent tampering signs in the bond room and the seal.
3.The bulk inspection team was in collusion with the firm.
Presenting Officer has failed to establish beyond doubt that the defendant carried out selective sampling in collusion with the firm.
The Presenting Officer has also failed to prove that firm did not replace the material.”
It is observed that the material offered by the firm M/s India Rubberising & Allied Industries (P) Ltd., Kanpur for purchase was found to be sub-standard and was rejected in bulk inspection. The Inquiry Officer has also agreed that out of a lot of 25000 Mtrs. offered for inspection, only 720 Mtrs. was accepted by the Bulk Inspection Team as mentioned in para 19 above. Therefore, substantial part of the material was substandard. The Inquiry Officer has, however, differed with the Presenting Officer on the point of collusion of the applicant with the firm. The Disciplinary Authority seems to have taken a right view after analyzing the evidence on record that the sampling done by the applicant was selective and not random. It is the responsibility of the Disciplinary Authority to analyse the evidence on record and come to a reasonable, appropriate and justifiable decision which has been done in the matter. The applicant was given full opportunity to defend himself during the inquiry and after the inquiry also. Therefore, there is no reason to interfere with the decision of the respondents i.e. the Disciplinary Authority in this case. Respondents have followed all the requisite procedures before imposing the penalty.
In view of the above facts, the original application is dismissed. No Costs. All the related MAs stands disposed of.