TaxTMI 
TaxTMI 
TaxTMI 
2019 (12) TMI 707
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....2004. 4. Between 10th February, 2004 and 9th May, 2004, the Petitioner was posted as Assistant Accounts Officer ('AAO') in the office of the Executive Engineer ('EE')/Divisional Officer, Karnal, Central Division, CPWD. 5. During November-December, 2004, the EE, Karnal, Central Division invited tenders for construction work connected to water supply, sanitary installation, drainage, electrical installation and fire alarm for IHM, Kurukshetra. The sealed tenders received were opened by the EE on 24th January, 2005 and handed over to Mr. R. P. Dua, the Upper Division Clerk ('UDC') for checking them and preparing a comparative statement. Mr. Dua then undertook the task with the assistance of his colleagues Mr. Jai Singh, UDC, Mr. Harsh Jain, LDC, and a Computer Operator. 6. On 28th January, 2005, Mr. Dua noticed four pages of the second lowest tender by M/s. Rajaram Contractor to be missing. He reported this to the EE on 17th February, 2005. The EE then sought an explanation from the Petitioner by his letter dated 15th March, 2005 and 24th March, 2005. By his replies dated 17th March, 2005 and 30th March, 2005, the Petitioner gave an explanation of the factua....
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....ay of removing four pages while the tenders were under scrutiny in the accounts branch of Karnal central Division, CPWD, Karnal and thus by not ensuring the safe custody of the tender documents, during the computation and preparation of comparative statement in accounts branch the said Sh. Virender Singh Chankot, AAO has violated the CPWD works manual 2003 para 18.3.16.1. Thus, by his above acts, the said Sh. Virender Singh Chankot, AAO committed grave misconduct, exhibited lack of devotion to duty, and acted in a manner unbecoming of a Government servant, thereby contravening Rule 3(1)(i), (ii) & (iii) of the central Civil Services (Conduct) Rules, 1964." 10. The report of the investigation submitted to the Vigilance Unit referred to the role played by Mr. Dua, UDC and the role of Mr. S. S. Vashisht, EE. It talked of "lapses" on the part of the Petitioner and Mr. Dua. Further, after discussing the reply of the EE, it concluded, "the lapse on the part of Sh. S.S. Vashisht, EE, is clearly made out." 11. On 20th March, 2015, an Office Memorandum ('OM') was issued by the Central Vigilance Commission ('CVC') where it advised issuance of a "recordable warning" to Mr.....
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....report in that regard to the EE. It is not, therefore, understood how the Petitioner could be held responsible for four pages of the tender documents of M/s. Rajaram Contractor going missing. 18. The Court has been shown Section 18 of the CPWD Works Manual, 2003, and in particular, Section 18.3.16.1, which reads as under: "18.3.16.1. The Divisional Accountant is responsible for the safe custody of tender documents during the period when they remain in the Accounts Branch until submission to the Executive Engineer." 19. Consequently, as far as the Petitioner is concerned, his responsibility for safe custody of the tender documents continued till their entrustment to the EE, and not thereafter. In the present case, after the Petitioner had entrusted the documents to the EE, the latter, in turn, entrusted them to Mr. Dua. Those documents did not come back to the Petitioner at any stage. 20. The Court also finds that the CAT has not appreciated the correct legal position as regards delay. It appears to have conflated the prejudice arising from the delay itself with the prejudice caused to the defence of the charged official as a result of the delay. That the delay itself could cau....
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....of the same event. In the present case, as already noticed, although the preliminary enquiry fastened responsibility on the EE, he was let off with a "recordable warning", whereas major penalty proceedings were initiated against the Petitioner. In the facts narrated hereinbefore, it is plain that the four pages of the tender document of M/s. Rajaram Contractor went missing during the time that the EE handed over the papers to Mr. Dua, UDC. The essential responsibility at this stage for the safe custody of the paper was obviously on the EE, and not on the Petitioner, as is also evident from the CPWD Manual under Section 18.3.16.1. 23. In a decision dated 1st May, 2008 in Civil Appeal 3186/2008 (Man Singh v. State of Haryana), the Supreme Court commented on the discriminatory treatment afforded to delinquent officials, and explained the legal position in Paragraphs 19 and 20 as under: "19. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have ....
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....air, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The High Court has failed to appreciate and consider the precise legal questions raised by the appellant before it and dismissed the Second Appeal by unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments and decrees of the first appellate court and that of the trial court is not sustainable. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-a-vis HC Vijay Pal, the driver of the vehicle." 24. This was reiterated in Rajendra Yadav v. State of M. P. (2013) 3 SCC 73 as under: "13. The principle stated above is seen applied in few judgments of this Court. The earliest one is Director General of Police and Others v. G. Dasayan (1998) 2 SCC 407, wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The Disciplinary Authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on Head Constable. This Co....