D.K. SINHA Vs. UNION OF INDIA THROUGH SECRETARY, MINISTRY OF MICRO, SMALL & MEDIUM ENTERPRISES, GOVT. OF INDIA, UDYOG BHAWAN, RAFI MARG, NEW DELHI

JUDGEMENT

(1.) D. K. Sinha, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, calling in question the Presidential order according sanction for departmental proceedings against him under rule 9 of the Central Civil Services (Pension) Rules, 1972 (hereinafter to be referred as the Rules of 1972), as contained in order dated 21.11.2007 issued under signatures of the Additional Development Commissioner & Chief Vigilance Officer, Office of the Development Commissioner (Micro, Small & Medium Enterprises), New Delhi, along with its enclosures, i.e., the memorandum, Annexure -I (statement of articles of charge); Annexure -II (statement of imputations of misconduct or misbehaviour in support of the articles of charge); and Annexure -III (list of documents).

(2.) Shorn of unnecessary verbiage, the facts that may be relevant for adjudication of the points raised in the present OA would reveal that the applicant while working as Assistant Director in the office of the Development Commissioner under the Ministry of Micro, Small & Medium Enterprises (MMSME), applied for the post of Deputy General Manager in the RITES Ltd., a Public Sector Undertaking of Government of India, in pursuance of an advertisement dated 02 -08.09.2006 in the Employment News. His name was duly forwarded by MMSME, and clearance from the point of vigilance was also given, and it was stated that the appointment of the applicant in RITES would be on immediate absorption basis. He was selected on the post aforesaid and the competent authority accepted his technical resignation with effect from 03.05.2007. The applicant joined RITES as Deputy General Manager on 04.05.2007. In January, 2009, through information received under the Right to Information Act, 2005, it transpired that the Deputy Director (Vigilance), MMSME had advised the Development Commissioner not to disburse any pensionary benefit to the applicant because CVCs advice for initiating departmental proceedings against the applicant had been received. Memorandum dated 21.11.2007, in pursuance of the sanction accorded by the President under rule 9 of the Rules of 1972 for departmental proceedings came to be issued, and the applicant was put to departmental trial on the following charges: Charge -I Shri D.K. Sinha, ex -AD(Met.) Admn./DDO, RTC, New Delhi had submitted a proposal for approval and sanction of funds for purchase of UTM 1000 KN cap Servo Hydraulic Universal Testing Machine for Metallurgy Laboratory of RTC, New Delhi during the year 2005 -06 for Rs. 14,69,400/ -. After receiving sanction for funds, quotations were called for. Letters were issued to all the firms for some clarifications and in the meantime Shri D.K. Sinha sent a proposal for revised specification for purchase of another UTM 1000 kn capacity machine as he got the information that a better version of this machine with more accuracy of indicated force with additional features was available in the market. After receiving sanction from Headquarter, RTC, New Delhi, a purchase order was placed vide their letter dated 17.1.06 with M/s Ashian Engineers Co. India, 415, Suneja Tower -II, Bldg. No. 12, Distt Centre, Janak Puri, New Delhi. While processing this case Sh. D.K. Sinha violated purchase procedure given in GFR and the CVC guidelines. The two bid system (technical and commercial) was not followed by Shri D.K. Sinha for procurement of machines in this case. By his above act Shri D.K. Sinha, ex -AD(Met) Admn./DDO, RTC, New Delhi violated Rule 3(1)(i)(ii)(iii) of CCS (Conduct) Rules, 1964. Charge -II Shri D.K. Sinha had drawn the money on the last day of the financial year 2005 -06 for delivering the cheque to the supplier after he had fulfilled all requirements specified in the tender document. Later on, on the basis of wrong arguments and technical requirements the payment of M/s Ashian Engg. Co. India was stopped and the supplier was asked to remove machine from the office premises vide letter No. PUR/M&E/Met/2005 -06/RTC/NR/3485 dated 11.7.06 after putting wrong arguments and technical requirements vide letters No. PUR/M&E/Met/2005 -06/ RTC/ NR/3162dtd20.6.200 & No.PUR/M&E/Met/2005 -06/RTC/NR/3200 dtd 22.6.2006. The payment was then wrongly withheld by Shri D.K. Sinha and was released only on the orders of the former Secretary (SSI&AR). By his above act Shri D.K. Sinha, ex -AD(Met)Admn./DDO, RTC, New Delhi violated Rule 3(1)(i) and 3(1)(iii) of CCS(Conduct) Rules, 1964.

(3.) Not being satisfied only with initiation of enquiry against the applicant under rule 9 of the Rules of 1972, vide order dated 29.05.2009, the MMSME wrote to the Development Commissioner informing the latter that the name of the applicant had been placed in the list of officers of gazetted status of doubtful integrity for the year 2008. Deputy Director (Vigilance) of MMSME also informed RITES Ltd. that the name of the applicant had been included in the list of public servants of doubtful integrity and that he should not be posted in any sensitive position. Being highly aggrieved of such action taken by the respondents, the applicant, earlier in point of time, filed an Original Application bearing OA No.3031/2009 in this Tribunal, calling in question the order bringing his name in the list of public servants of doubtful integrity. The said OA was allowed by us vide order dated 11.05.2010. We may make mention of some of the observations that may be relevant for the purpose of deciding the present OA as well. The same read, thus: 8. From the perusal of the charges leveled against the Applicant, it is seen that the first charge is regarding procedural lapses. The Applicant has not followed the two bid system. The second charge against the Applicant is that he withheld the payment of the supplier of an equipment on wrong arguments and technical requirements. However, in both the charges, there are no allegations that the lapse on the part of the Applicant led to any loss to the government or that the Applicant acted in the manner indicated in the charges for some personal gain or that he gained anything by not following the procedure and by withholding the payment of the supplier of the equipment. Clearly, therefore, there is no charge of lack of integrity against the Applicant. Relying upon the judgment of the Honble Supreme Court in R. Venkatakrishnan v CBI [(2009) 11 SCC 737], we set aside the orders impugned in the OA aforesaid, observing as follows: 10. Applying the aforesaid in the instant case, it would be seen that once the Applicant has resigned on 3.05.2007, he was no longer under the control of the Respondent - MMSME after his resignation on 3.05.2007 from the service of the latter and his absorption in RITES Ltd. If the Respondent - MMSME was not the Applicants employer in 2008, when his name was retrospectively placed in the list of public servants of doubtful integrity, it was not justified in doing so. He was not transferred to RITES. He had been absorbed there. The word 'Transfer in the OM of 28.10.1969, adverted to above, does not have the connotation of transfer on deputation, as the Respondents are trying to imply. The instructions quoted by the learned counsel for the Respondent, which have been reproduced in the preceding paragraph, would only apply to the persons in the employment of the Respondent. While, it is provided under the Rules, namely, Rule 9 of the CCS (Pension) Rules, 1972 that departmental proceedings can be instituted on the satisfaction of the President after his retirement, yet it is not provided under any rules or instructions that name of a retired person can be placed in the list of persons of doubtful integrity.