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It is to be noted that the deficiencies/irregularities pointed out in my
inspection report were never raised or even mentioned in the Monday
Meetings either by DRM/SBP or CMS/SBP. It was never even
discussed with me personally, either by DRM or CMS. They remained
silent over the issue without taking any decision. And there was no
action or direction from GM either on the report sent on 13.06.12.
Bill No.DB/SBP/Mechanised Cleaning/07/dated 13.07.2012 was
received in my office on 08.08.12. CMS has sent the CC-7 bill along with a
note proposing a recovery of Rs.10,000, citing Annexure-III, Clause No.9 of
the contract that the maximum penalty that can be imposed on a single
occasion is only Rs.5000 but did not give any point wise compliance remarks
on the penalty proposed in the inspection report, except that the attendance
register has been corrected from 25.05.12. It was also mentioned that a
notice has been issued to the Contractor on 04.08.12 asking him to get the
machinery repaired within 15 days failing which a penalty of .1000 per day
will be recovered. (Annexure-VI)
The said bill was returned by my office on 09.08.12 stating that the
penalty of Rs.10,000 proposed by CMS is not convincing and asking for
the point wise compliance remarks or otherwise directions from the
DRM/SBP may be taken and send to my office for further action.
(Annexure-VII)
After the bill was returned, it was then, the DRM has called a meeting of
ADRM, CMS, Sr.DMO(H&W) and the then Sr.DFM i.e., me and discussed the
issue on 10.08.12. In the meeting, I have made it clear that DRM may
take any decision regarding the amount of recovery of penalty or the
termination of the contract, but that should be based on some rational
basis. After that no authority has discussed with me regarding the matter,
except Sr.DMO(H&W) who has shown the draft compliance remarks to me. I
told that the remarks were incomplete and if he wishes he can show me
before remarks are finalized.
The bill was resubmitted to Accounts on 29.08.12 after a gap of 20 days
with compliance remarks and proposing a penalty of Rs.37,500. The remarks
given were not convincing. And also no specific directions from the DRM was
available except a remark that Seen. Inspection of work at officer level
w.r.t scope of work should be done frequently which was signed on
27.08.12 i.e., the date of expiry of the currency of the contract.
(Annexure-VIII)
My office has returned the bill again on 03.09.12 asking for
clarifications regarding the discrepancies in the attendance register
and the wage payment statement submitted along with the bill and
also for taking specific approval from the DRM regarding the amount
of penalty recoverable. (Annexure-IX)
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(d) Tendering, as part of its important functions, advice to the administration
whenever required or necessary in all matters involving railway finance;
(e) Compilation of budgets in consultation with other departments and monitoring the
budgetary control procedures as may be laid down in the relevant orders and Code
rules from time to time;
(f) Generally discharging other management accounting functions such as providing
financial
data
for
management
reporting,
assisting
inventory
management,
authorization
of
expenditure
are
checked
(in
accordance
with
the
176
requested by the Financial Adviser and Chief Accounts Officer. While doing so, the
General Manager should incorporate fairly and fully the comments and views of the
Financial Adviser and Chief Accounts Officer. The orders of the Railway Board on
such a reference when received by the General Manager shall be furnished by him to
the Financial Adviser and Chief Accounts Officer (vide paragraph 804).
(c) The above procedure will apply mutatis mutandis in cases where the Financial
Adviser and Chief Accounts Officer himself (without intervention of his subordinate
officers) considers any order of an executive officer or any claims arising there
from irregular or improper in internal check.
Para 801 of Accounts Code: Internal Check- The check exercised by the
Accounts Officer on the financial transactions of the railway on behalf of the
Railway Administration is called internal check. It is so called to distinguish it from
the audit conducted by the Chief Auditor of the Railway on behalf of the
Comptroller and Auditor General. The internal check should be conducted with
reference to(a)
(b)
The Rules and orders issued by the President , the Railway Board,
General Managers of Railways and other subordinate authorities to whom
the power to issue rules or orders has been delegated;
the instructions contained in this and other Indian Railway Codes and any
further instructions issued from time to time by the Railway Board; and
(c)
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(e) that the expenditure does not contravene any rules and orders in force, or
any general or special orders issued by competent authority;
(f) that the expenditure does not involve a breach of the canons of financial
propriety;
(g) that the expenditure sanctioned for a limited period is not admitted
beyond that period without further sanction;
(h) that in the case of recurring charges which are payable on the fulfillment
of certain conditions or till the occurrence of a certain event, a certificate is
forthcoming from the drawing officer to the effect that the necessary conditions
have been fulfilled or the event has not yet occurred;
(i)that the expenditure has been properly and fully vouched for and that
payment has been so recorded as to render a second claim on the same account
impossible;
(j)that the charge has been correctly classified and
(k)that if a charge is debitable to the personal account of a contractor,
employee or other individual or is recoverable from him under any rule or order, it is
recorded as such in a prescribed account.
Para 816 of Accounts Code - Check of Bills:-All bills should, in so far as they
represent claims against the railway, be scrutinized as required in the preceding
paragraph. They should, in addition, be checked to see(a)
(b)
that they are in the prescribed form, are written in ink and are in original;
That they are in English/Hindi or if in any other language, have been rendered
into English/Hindi;
That their totals are given both in words and in figures, that there are no
(c)
erasures, and that any alterations in the totals are attested as many times as
they are made;
(d)
That Fund and Income-tax deductions, where applicable have been correctly
made;
That they bear a certificate, wherever necessary, from the departmental
(e)
officer that the services for which the payment is claimed have been actually
rendered;
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That if the proof of the correctness of a claim does not accompany the bill (e.
(f)
(g)
Note: in respect of internal checks of Pay Bills, please refer to Chapters XIII to
XIV.
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returned to the officer submitting them for amendment or explanation. If in a
particular case, the explanation of the officer submitting a claim or an amended
claim is not accepted or, if the claim is considered irregular by the Accounts
officer in internal check the claim may either be disallowed or passed
provisionally pending regularisation in accordance with the following rules.:(a)
As a General rule a claim may be disallowed only when there is prima facie
evidence that it is incorrect and that its payment might result in loss to the
Railway.
(b)
172
Para 115 of Finance Code-I: There can be no hard and fast rules on how
precisely the financial, scrutiny of proposals received from the Executive
Departments should be carried out. The objective is to secure maximum
efficiency in railway operations at the minimum cost, without unduly sacrificing
one for the other
Para 116 of Finance Code-I: Standards of financial propriety: In the exercise
of their financial powers, the sanctioning authorities must pay due regard to the
following principles:
(1) The expenditure should not prima facie be more than the occasion demands, and
that every Government servant should exercise the same vigilance in respect of
expenditure incurred from public moneys as a person of ordinary prudence would
exercise in respect of the expenditure of his own money.
(2) No authority should exercise its powers of sanctioning expenditure to pass an
order which will be directly or indirectly to its own advantage.
(3) Public moneys should not be utilized for the benefit of a particular person or
section of the community unless
(i) The amount of expenditure involved is insignificant; or
(ii) A claim for the amount could be enforced in a court of law; or
(iii) The expenditure is in pursuance of a recognised policy or custom.
(4) The amount of allowances, such as travelling allowances, granted to meet
expenditure of a particular type, should be so regulated that the allowances are not
on the whole sources of profit to the recipients.
Para 203 of Finance Code-I: Scrutiny by Accounts Officer -The Accounts
Officer in his position as the Financial Adviser to the Administration, should
carefully scrutinise the justification for proposed expenditure with reference to the
principles enunciated in this Chapter and other orders on the subject. Even in cases
where the return on the outlay is not the determining factor, it will be
incumbent on him to examine and offer his advice on the general merits of the
proposal in the spirit of a prudent individual spending his own money.
All the above provisions in the Finance Code and Accounts Code make the
Accounts Officer a part and parcel in the administration of the Railway. The
Accounts Officer is associated with the railway administration and
management of the business of transportation right from the preparation of
proposal to the completion of the contract. Starting with the concurrence of
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proposal, vetting of the estimate, tender schedule vetting when new
conditions having financial implications are included, witnessing of the tender
opening, briefing note vetting, participating in all the tenders as a finance
member, draft agreement vetting, scrutiny and payment of contractual bills till
the completion estimate is vetted, the Accounts department plays a crucial
role in safeguarding the financial interest of the railway. The Accounts is also
responsible for the accountal of the earnings and budgeting and control of the
expenditure. These are the duties and responsibilities assigned by the codes
on the Accounts Officer. Thus it can be seen that the Accounts Office is
associated in each and every activity of the railway administration.
Whatever I have done is done in the course of discharging my official duties as
per the Codes and the directives issued by the Railway Board from time to
time. If the GM has any doubt regarding the authority of an Accounts Officer
in conducting inspections, proposing penalties then he would have consulted
the FA&CAO or still not satisfied with the clarifications of FA&CAO, he might
have referred the matter to the Railway Board.
The DA has issued a Charge Memo and Annexure I, making the statement of
imputation of Misconduct: It would be pertinent here to know the definition
and meaning of the word Misconduct and what constitutes misconduct as per
law.
Misconduct has been defined in Blacks Law Dictionary, Sixth Edition at page 999,
thus: "A transgression of some established and definite rule of action, a
forbidden act, a dereliction from duty, unlawful behaviour, wilful in character,
improper or wrong behaviour, its synonyms are misdemeanour, misdeed,
misbehaviour, delinquency, impropriety, mismanagement, offence, but not
negligence or carelessness.
Misconduct in office has been defined as: "Any unlawful behaviour by a public
officer in relation to the duties of his office, wilful in character. Term
embraces acts which the office holder had no right to perform, acts performed
improperly, and failure to act in the face of an affirmative duty to act."
In P.Ramanatha Aiyars Law Lexicon, 3rd Edition, at page 3027, the term
misconduct has been defined as under: - "The term misconduct implies, a wrongful
intention, and not involving error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral
turpitude.
The Honble Supreme Court in the case reported as 1992 (4) SCC 54 State Bank of
Punjab & Ors. vs. Ram Singh Ex Constable discussed and decided what misconduct
is. The relevant paras of the judgment are reproduced below: - "In usual parlance,
misconduct means transgression of some established and defined rule of action,
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where no discretion is left, except that necessity may demand and carelessness,
negligence and unskilfulness are transgressions of some established, but indefinite,
rule of action, where, some direction is necessarily left to the actor. Misconduct is a
violation of definite law; carelessness or abuse of discretion under an indefinite
law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act,
and is necessarily indefinite. Misconduct in office may be defined as unlawful
behaviour or neglect by a public officer, by which the rights of a party have
been affected."
. . . It may involve moral turpitude, it must be improper or wrong behaviour;
unlawful behaviour, wilful in character, forbidden act, a transgression of
established and definite rule of action or code of conduct but not mere of
judgment, carelessness or negligence in performance of the duty; the act
complained of bears forbidden quality or character. Its ambit has to be construed
with reference to the subject matter and the context wherein the term occurs,
regard being had to the scope of the statute and the public purpose it seeks to
serve. The police service is a disciplined service and it requires to maintain strict
discipline. Laxity in this behalf erodes discipline in the service causing serious effect
in the maintenance of law and order."
In Union of India and Ors. v. J. Ahmed, where the officer was not very efficient
officer and some negligence was attributed to him and some lack of qualities
expected of an officer of his rank were listed as charges, and the officer was held
liable to incur penalty under Rule 3, it was observed:
...Competence for the post, capability to hold the same, efficiency requisite for a
post, ability to discharge function attached to the post, are things different from
some act or omission of the holder of the post which may be styled as misconduct so
as to incur the penalty under the Rules.
It was further observed: ...The Government has prescribed by Conduct Rules a code
of conduct for the members of All India Services. Rule 3 is of a general nature which
provides that every member of the service shall at all times maintain absolute
integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly entail
penalty. Failure to come up to the highest expectations of an officer holding a
responsible post or lack of aptitude or qualities of leadership would not constitute
failure to maintain devotion to duty. The expression 'devotion to duty' appears to
have been used as something opposed to indifference to duty or easy-going or
light-hearted approach to duty. If Rule 3 were the only rule in the Conduct
Rules it would have been rather difficult to ascertain what constitutes
misconduct in a given situation. But Rules 4 to 18 of the Conduct Rules
prescribe code of conduct for members of service and it can be safely stated
that an act or omission contrary to or in breach of prescribed rules of conduct
would constitute misconduct for disciplinary proceedings. ...It is, however,
difficult to believe that lack of efficiency, failure to attain the highest standard of
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high. An error can be indicative of negligence and the degree of culpability may
indicate the grossness of the negligence. Carelessness can often be productive of
more harm than deliberate wickedness or malevolence. Leaving aside the classic
example of the sentry who sleeps at his post and allows the enemy to slip through,
there are other more familiar instances of which a railway cabin man signals in a
train on the same track where there is a stationary train causing headlong collision; a
nurse giving intravenous injection which ought to be given intramuscular causing
instantaneous death; a pilot overlooking an instrument showing snag in engine and the
aircraft crashes causing heavy loss of life. The High Court was of the opinion that
misconduct in the context of disciplinary proceeding means misbehaviour involving
some form of guilty mind or mens rea.
The word `misconduct is a relative term, and has to be construed with reference to
the subject matter and the context wherein the term occurs, having regard to the
scope of the Act or statute which is being construed.
Misconduct has to have some element of delinquency, may be, even gross
negligence. Non-performance of duties, which may have no element of unlawful
behaviour, wilful in character, improper or wrong behaviour, misdemeanor,
misdeed, impropriety or a forbidden act, may sometime amount to not carrying
out the duties efficiently, but the same cannot be construed to be misconduct.
If decisions that may ultimately prove to be less beneficial to an organisation
for which a person is working are to be termed as misconduct liable for
punishment under rules, no person discharging his duties would be able to take
any major decision. The administrative work, if may not come to a grinding halt,
would, in any case, slow down so much that it may cause more harm and loss to
the concerned institution. From our experience from several hundred cases that
we have dealt, we find that a negative and indecisive attitude is developing
amongst the government officers, primarily for the reason that any decision
taken which may be even in good faith, or favourably interpreting rules
benefiting even a deserving government employee, may not become subject
matter of disciplinary action against them. Surely, if government servants are
to be tried departmentally for bona fide actions taken by them in discharge of
their official duties, which may have absolutely no undertones or overtones of
delinquency, the situation as prevails today is bound to aggravate.
The Honourable Supreme Court in Union of India and others Vs. K.K. Dhawan,
(1993) 2 SCC 56; Zunjarrao Bhikaji Nagarkar Vs. Union of India and Others,
(1999) 7 SCC 409; Union of India and others vs. Duli Chand, held, a wrong
interpretation of law cannot be a ground for misconduct. Of course it is a
different matter altogether if it is deliberate and actuated with mala fides.
...He may have wrongly exercised his jurisdiction. But that wrong can be
corrected in appeal. That cannot always form a basis for initiating disciplinary
proceedings against an officer while he is acting as a quasi-judicial authority, he
is always subject to judicial supervision in appeal. If every error of law were to
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dense: palpable: flagrant: glaring: extreme: shameful: whole: coarse in mind:
stupid: sensual: obscene: total, including everything.
According to Black's Law Dictionary: (5th edition, 4th reprint, 1981, pg 632) Gross
means: out of all measure, beyond allowance: flagrant: shameful as a gross
dereliction of duty, gross injustice, gross carelessness or negligence.
According to Legal Thesaurus by William C. Burton (2nd Edition, 1992, Macmillan
Publishing Company, pg 244) Gross means absolute, aggravated, atrocious, big,
colossal, considerable, deplorable, dire, disgusting, dreadful, easily seen,
egregious, enormous, evident, extreme, fulsome, gigantic, grave, great,
grievous, heinous, horrible, huge, immense, indelicate, lamentable, large,
manifest, massive, monstrous, obvious, odious, offensive, outrageous,
reprehensible, shameful, shocking, terrible, unmitigated, utter.
"Irregularity" as defined in Chambers Twentieth Century Dictionary (Revised Ed.
1976, Allied Publishers Pvt. Ltd. Pg 695): Irregular (Irregularity) means: not
regular: not conforming to rule or to be ordinary rules.
According to Advanced Law Lexicon by P Ramanatha Aiyar (3rd Edition, 2005,
Wadhwa and Company, Pg 2045): Irregularity means: A neglect of order or method:
not according to the regulations: the doing of some act at an unreasonable time,
or in an improper manner.
An irregularity is defined to be the want of adherence to some prescribed rule or
mode of proceeding: and it consists either in omitting to do something that is
necessary for the due and orderly conducting of a suit, or doing it in a
unreasonable time or improper manner.
Read together "gross irregularity" suggests such an irregularity which is not
capable of being cured. It means flagrant abuse of any rule or order which
cannot be rectified.
The meaning of the term gross irregularity is very clear. It is to be stated that
I have not done any shameful act which amounts to a gross
dereliction of duty, or gross injustice or gross carelessness or
negligence. Nor did I involve in flagrant abuse of any rule or order which
cannot be rectified. All my actions are conforming to rules, regulations and
directions and were not done at an unreasonable time, or in an improper
manner. Now the onus lies on the learned DA to prove the charges levelled
against me.
It was alleged in the charge sheet that my observations were not in accordance
with
the
Conditions
of
Contract,
stipulated
in
the
Contract
Agreement
163
the contract carefully or willfully read the conditions selectively to
frame false and baseless charges against me.
The basic premise of the DA that I have imposed the huge penalties on the
contractor itself is wrong. As the Accounts officer I have only proposed the
penalties as per the detail penalty conditions available in the Annexure-III of
the contract. Moreover As per clause (q) of Annexure-III any other
deficiencies pointed out by Inspecting official and not indicated in
above classified items, fine up to the discretion of the inspecting
official can be levied. Thus, nothing can preclude me in imposing
penalty within the provisions of the contract. If the DA cannot
understand the meaning of the provisions of the contract he should consult his
legal officer. However, I state that I have not exceeded my authority,
because I have only proposed the penalty as per the conditions and
leaving the final decision regarding the amount of recovery or
termination of contract, to the DRM, who is Head of the Division.
Whatever I have reported has a strong basis and recorded evidence
including the video CD. Despite of that, I have not arbitrarily levied
any penalty. It was the failure of the executive authorities responsible
in the supervision of the execution of the contract to give necessary
timely action. Further it is to be noted by the learned DA, that
Accounts department cannot admit the bill for payment just because it
has been resubmitted second time but with no valid compliance
remarks. When the observations raised by the Accounts Officer are
available on record, it becomes the responsibility of the department to
send proper compliance remarks.
Why only Accounts department, this applies to any other department
as well. It can be seen when any technical department raises certain
objections/observations be it in the siding estimates, works proposals
or technical drawings of the work, it becomes the responsibility of the
user department to give compliance. Otherwise the department head
will not be signing/counter signing on the proposal or the drawing.
Simply just because the user department has resubmitted the
proposal/drawing for 2nd or 3rd or 4th time or any number of times
without properly rectifying the deficiencies or complying the
observations, it does not become binding on the technical department
to agree for the proposal/drawing. When there is involvement of
many departments within the same organization as in the Railway,
these types of situations are bound to come. The learned DA should
appreciate this fact.
It was further alleged that on the plea of the said penalty, did not
arrange for payment against CC-7 & on account bill, cleared by the
concerned executive for the period from 28.03.12 to 27.06.12 and
returned the said bill twice, vide his Letter No.Sr.DFM /SBP /Cleaning /DB /
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6069, dated 09.08.2012 and again vide his letter No. Sr.DFM/SBP /Cleaning /
DB/6141 , dated 03.09.12, thereby leading to discontinuation of Cleaning
and Sanitation work, which is considered the most basic public
amenity that Railways are obliged to provide.
This allegation is also false as can be seen in the language of the letters
written by my office while returning the bills. The bill at the first instance was
returned on 09.08.12. It is to be appreciated by the DA that the Accounts
office while admitting the bills for payment will check any pending liabilities
are there against the contractor. In the instant case, there was a detailed
inspection report by the then Sr.DFM/SBP. Obviously, my office has returned
the bill stating that nothing has been mentioned about the recovery so
proposed in the inspection note, a penalty of Rs.10,000/- has been
proposed to recover from contractor which is not convincing, the
contract condition and the penalty charges may be referred once
again, para wise compliance remarks in the inspection note and the
remarks on the proposed point wise penalty of the inspection note
may be given or otherwise direction from the DRM/SBP may be
sought and the same may be sent to this office for further action.
(Annexure-VII)
Did the learned DA ask the question, why the said bill No.DB/SBP/Mechanised
Cleaning/07 dated 13.07.2012 pertaining to the period from 28.03.2012 to
27.06.12 has been sent to my office on 07.08.2012. How the delay in
sending the bill can be explained. It is to be further noted that as per
Sl.No.XIV of terms and conditions of the Contract, Payment shall be made
on a monthly basis. At the end of each month, the monthly bill shall be
prepared in triplicate and submitted by the contractor duly verified by
the HI/SBP along with a certificate in support of satisfactory
performance. Further Sl.No.XV says, these bills should be submitted to
the Divisional office within 10 days of the completion of the month to
which it pertains.
Can he explain why the bill pertaining to period from 28.03.2012 to
27.06.12 is sent on 07.08.12? Why the bill dated 13.07.12 is
submitted to our office on 07.08.12? Why the Medical department has
kept the bill for 25 days in its office? Didnt the contractor face
financial hardships for not getting the money for 4 months? Why he
has not claimed the bill in time as per the conditions of the contract?
Now why he says that due to financial hardship or non receipt of
payment he cannot extend the contract?
By returning the bill my office was doing its duty prescribed by the Provisions
mentioned above in the Accounts Code, Finance Code and the powers
delegated by the GOI, Ministry of Finance to the Finance Department of
Railways to safeguard the financial interests of the Railway. The DA has failed
in appreciating the roles and responsibilities of the finance department. It is to
be understood that the Accounts Department cannot admit the bills without
getting the convincing compliance remarks from the executive concerned
when there were certain observations raised by it. It is to be understood by
the learned DA that any bill cannot be admitted by the Accounts just because
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it has been cleared by the Executive once, twice or any number of times. The
claim made should be regular and the compliance remarks are to be valid and
convincing. If the Accounts office has to admit the bill, because the executive
has sent it, without raising any questions where irregularities are obvious, in
that case, there would be no need for the Accounts department and the
internal check mechanism.
It is further stated that the contractor in his letter dated 14.08.12 (after the
said bill was returned by my office on 09.08.12) has mentioned presently I
am unable to run for the further period of 03 months due to my
personal problem and no where he has mentioned about the financial
hardship or the nonpayment of bill. Only at a later date i.e., in his letter dated
24.08.12 that the wisdom from external factors that were lend upon him to
write a well drafted letter has mentioned, with regret, I am very sorry to
say that, though I have given the willingness on dt.04.08.12 to your
office again you had sent the letter on dt.21.08.12 and the same letter
received by me on 23.08.12. I have not yet received any payment
from 28.03.12 to till date, though as per agreement, payment should
be made on monthly basis. (Annexure -X)
The pertinent question here is why the contractor has not claimed the
bill on monthly basis as per the agreement?
And if the work was so sensitive and the most basic amenity that railways are
obliged to provide, what was the Medical department doing when the
contractor has refused his willingness on 14.08.12 on personal grounds. The
contractor also wrote a letter to CMS on 24.08.12 itself about his
unwillingness to extend the work further due to non payment and financial
hardships. Why the medical department has issued 7 days notice on
31.08.12 when the contractor has stopped the work on 28.09.12 and
already intimated about his unwillingness on 24.08.12 itself. Why 48
hours notice was issued on 13.09.12 i.e., after the expiry of 12 days
instead of 7 days. Finally the contract was terminated on 26.09.12. Once the
extension of contract has been agreed and the extension letter has been
issued on 13.08.12 by the Competent Authority it becomes binding on the
contractor to execute the work. And no reason can be valid for withdrawing
his willingness.
The second time also the bill was submitted without convincing
remarks and proposing only 37,500/- as penalty without any
reasonable basis. There was also no specific approval from the DRM
and a vague remark Seen. Inspection of work at officer level w.r.t
scope of work should be done frequently which was signed on
27.08.12 i.e., the date of expiry of the currency of the contract. And
the observations highlighting the discrepancy in the attendance
register and the wage payment statement along with other remarks
were sent. (Annexure-IX) Just because a bill is being resubmitted by
the Executive the second time does not mean that the Accounts
department should close its eyes and admit it without any scrutiny.
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Thus the contention that I have not referred the matter to the higher authority
is also not based on the truth.
Firstly, I have marked my inspection report along with video to the CMS and
DRM. Secondly, when CMS has made casual remarks, the same was taken to
the knowledge of the FA&CAO and GM through Secretary to GM. Thirdly,
while returning the bill for the first time, it was asked to take the directions
from the DRM for further action. Fourthly, when the issue was discussed in a
meeting by DRM, I have made it clear to DRM that he can take any decision
regarding the penalty or termination. Fifthly, while returning the bill for
second time, it was asked to take the specific approval of DRM for proposed
recoveries by the CMS.
If all the above actions are not considered as taking the issue to the higher
authorities, only the learned DA may tell what other higher authorities are left
in this railway to which/whom I can refer the matter for directions.
It was also alleged that I was responsible for discontinuing of the Cleaning
work at the Station. The DA should remember that I have also marked a copy
of my inspection report to the FA&CAO and Secretary to GM for the kind
information of the GM. But nothing was heard either from FA&CAO or from the
GM, and it is not known whether the GM has issued any directions in this
regard. It will not be untrue if it is stated that the GM is also indirectly
responsible for the impasse. As the Supreme Head of the Railway, we all look
towards the GM for directions. The GM should have thought why I have
marked a copy of inspection report to him. He would have intervened in the
matter before it was gone out of proportion.
In the above context, the logic of the learned DA is wonderful. The CMS who
has made casual remarks on the inspection report without giving any
compliance and who has never discussed about the issue is not held
responsible. The DRM as head of the Division who remained silent for
3 months and never discussed with me regarding the resolution of the
issue nor taken a decision is not held responsible. Yes. It is a fantastic
concept that an Accounts Officer who has conducted a detailed and
qualitative inspection as directed by the GM and the Railway Board
from time to time is held responsible for highlighting the
irregularities.
The GM vide Lr.No.ECoR/GA/Secy/Inspn/215 dated 28.11.2011 addressed to
all DRMs/PHODs mentioned inspection by Officers working under you
up to SG should be monitored by you for ensuring that number of
inspections conducted by them is as per the quota laid down and
quality of inspection is also satisfactory. (Annexure-XI) When the GM
came to know that there is no cleaning contract exists at the SBP did he ask
anyone what are the reasons for it? Did he ascertain the facts before he talked
violently to me over phone?
21
Charge No.
159
This allegation is baseless and is the failure of the DA to verify the factual
details in connection with the RG/LR. As mentioned by the DA, it is true
that the Railway's concern was to maintain the stipulated staffstrength at all time. But did he ever verify the Attendance Register wherein
the names of 34 staff only are enrolled and daily 4 or 5 staffs were
given Rest without providing any replacement staff for them. If he can
go through the attendance register (Annexure- XII) he can notice that fact.
Further there is no attendance available for the 3 Supervisors. Then how it
was ensured that the supervisor is available for round the clock? Moreover,
THREE staff namely Ms Sunita, Ms Ashtmi and Ms. Geeta has been
repeated in 2nd shift also since the commencement of the contract on
28.08.2010 to 31.12.2011. The names of TWO staff namely Ms. Ashtmi
and Ms. Geeta have been repeated from 01.01.2012 to 31.07.2012 and
ONE name i.e., Ms.Geeta has been repeated in the month of August
2012. But no additional remuneration has been provided as can be
seen in the wage payment statement witnessed by the SMR/SBP.
(Annexure-III) The DA may remember that this is also in violation of
provisions of the Contract Labour Act. As per the Law, the Minimum
number of hours a labour can be employed is 8 hours only. The extra hours of
work taken from labour may be acceptable in exceptional circumstances, but
with additional remuneration. But in no case that arrangement can be
continued for the indefinite period.
In fact, while calculating the proposed recoveries, I have taken a conservative
estimate as per the estimated provision. If I have to follow the attendance
register, then it should have been calculated for 4 or 5 staff. It may be
appreciated that the basis for the calculation was the attendance register
which was being closed daily and countersigned by the HI and Supervisor of
the contractor. The 600 days period is being calculated from the date of
commencement of the contract to the date of inspection. It is also to be
appreciated by the DA that whatever the amount proposed for recovery
should not be considered as a penalty but rather the recovery of the
amount already paid or the amount not to be paid. Hence, the charge
that there is no basis for the calculation of the recovery proposed is
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utterly baseless and arbitrary, factually incorrect and failure of
learned DA in appreciating the facts.
It may also be noted by the learned DA that I have made only conservative
estimate while proposing for the recovery for non provision of RG/LR staff in
replacement. I took only the estimated Minimum Wage of Rs.135. But as per
the Clause No.(O) of the Annexure-III, a penalty of Rs.500 per day per person
is to be levied as penalty. If that is worked out it comes to Rs. 500 X 4 X 600
days = 12,00,000.
Charge No.
citing that there was no evidence of the contractor providing the cleaning
staff in the 3rd shift (the 2nd night shift), whereas, he himself has recorded
in his inspection note that "one interest thing about the 3rd shift is that as
per the attendance register, 6 staff is being employed". Being the inspecting
official suggesting punitive measure against the contractor, the onus lied on
Shri Anand to gather evidence to raise the penalty, which Shri Anand
contradicted and instead, shifted it to the contractor to disprove him,
which is indicative of Shri Anand's biased approach in his inspection.
This charge is also baseless and is a result of the failure of the learned DA to
appreciate the facts. The false allegation of bias may be a result of the
selective reading or incomplete reading of the inspection report and the
contract conditions.
The onus of proof is to be examined in various contexts before I can
be held responsible for proving a fact.
Burden of Proof: A duty placed upon a civil or criminal defendant to prove or
Burden of proof can define the duty placed upon a party to prove or disprove a
disputed fact, or it can define which party bears this burden. In criminal cases,
the burden of proof is placed on the prosecution, who must demonstrate that
the defendant is guilty before a jury may convict him or her. But in some
jurisdiction, the defendant has the burden of establishing the existence of
certain facts that give rise to a defense, such as the insanity plea. In civil
cases, the plaintiff is normally charged with the burden of proof, but the
defendant can be required to establish certain defenses.
Under Section 101 of the Indian Evidence Act, whoever desires any Court to give
judgment as to any legal right or liability dependent on the existence of facts
which he asserts, must prove that those facts exist and the burden of proof
lies on that person. In terms of the said provision, the burden of proving the fact
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rests on the party who substantially asserts the affirmative issues and not the
party who denies it.
Section 102 of the said Act says that the burden of proof in a suit or proceeding
lies on that person, who would fail if no evidence at all were given on either
side.
Section 103 of the said Act shows that the burden of proof as to any particular
fact lies on that person who wishes the Court to believe in its existence, unless
it is provided by any law that the proof of that fact shall lie on any particular
person. There is another aspect of the matter which should be borne in mind. A
distinction exists between a burden of proof and onus of proof. The right to begin
follows onus probandi. It assumes importance in the early stage of a case. The
question of onus of proof has greater force, where the question is which party is to
begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing
forward evidence in support of a proposition at the beginning or later; (ii) to make
that of establishing a proposition as against all counter evidence; and (iii) an
indiscriminate use in which it may mean either or both of the others. The elementary
rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on
the plaintiff and if he discharges that onus and makes out a case which entitles him
to a relief, the onus shifts to the defendant to prove those circumstances, if any,
which would disentitle the plaintiff to the same.
In the case of A. Raghavamma and Anr. v. A. Chenchamma and Anr., AIR 1964
SC 136 (V. 51 C 10), it has been held that there is an essential distinction between
the burden of proof and onus of proof : burden of proof lies upon the person, who
has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting
of onus is a continuous process in the evaluation of evidence.
In Kalwa Devadattam v. Union of India, the Supreme Court observed in Para 11,
which reads as follows: "The question of onus probandi is certainly important in the
early stages of a case. It may also assume importance where no evidence at all is led
on the question in dispute by either side. In such a contingency the party on whom
the onus lies to prove a certain fact must fail. Where however evidence has been led
by the contesting parties on the question in issue, abstract considerations of onus
are out of place and truth or otherwise of the case must always be adjusted on the
evidence led by the parties".
In Alapati Sivaramakrishnayya v. Alapati Kasi Viswanadham, 1956(2)An.W.R.1004, a
Division Bench of this Court while dealing with the case of signature on blank-paper
held that if a person denies that he has written a letter which contains his
signature, then surely he must prove what he alleges i.e., that the letter was
got upon a blank piece of paper containing the signature, as also the
circumstances in which he happened to put his signature on such piece of paper.
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156
In V.D. Jhingan v. State of Utter Pradesh, the Supreme Court while dealing with the
case under Prevention of Corruption Act, held that the burden of proof lying upon
the accused under Section 4( 1) of Prevention of Corruption Act will be satisfied, if
he establishes his cases by preponderance of probability as is done by a party
in civil proceedings. It is not necessary that he should establish his case by the
test of proof beyond a reasonable doubt.
The burden lies upon the petitioner, who seeks a particular relief on the basis
of certain facts, to establish those facts."
It is settled proposition of law that burden of proof always lies upon the party
who makes certain allegations and seeks relief on it.
When a person is accused of any offence, the burden of proving the existence
of circumstances bringing the case within any general exceptions in IPC or
special exception or proviso of IPC is upon him and the court shall presume the
absence of such circumstances. Section 105 does not indicate the nature and
standard of proof required.
The allocation of the burden of proof in both civil and criminal trials turns on
the decision as to who should bear the risk of losing the case. That allocation is
decided by common law and by statute. In criminal trials the presumption of
innocence means that the burden of proof will be on the prosecution, unless this
is reversed by some express or implied statutory provision.
Section 271 of Income Tax Act: Failure to furnish returns, comply with notices,
concealment of income, etc :-(1) If the Income-tax Officer or the Appellate
Assistant Commissioner (or the Commissioner Appeals) in the course of any
proceedings under this Act, is satisfied that any person--...
(c) has concealed the particulars of his income or furnished inaccurate particulars of
such income,... "
There was an Explanation to Sub-section (1), which was engrafted in 1964. It read as
under: " Explanation.--Where the total income returned by any person is less than
eighty per cent, of the total income (hereinafter in this Explanation referred to as
the correct income) as assessed under Section 143 or Section 144 or Section 147
(reduced by the expenditure incurred bona fide by him for the purpose of making or
earning any income included in the total income but which has been disallowed as a
deduction), such person shall, unless he proves that the failure to return the
correct income did not arise from any fraud or any gross or wilful neglect on his
part, be deemed to have concealed the particulars of his income or furnished
inaccurate particulars of such income for the purposes of Clause (c) of this
subsection. "
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155
The High Court in CIT v. Kelini Krishnamurty [1976] 103 ITR 487, observed (p. 488):
"It would be sufficient to say that this court laid down in unmistakable terms that
the onus was under the Act on the assessee to establish that the suppression
was not deliberate. This onus, doubtless, is not, as in a criminal case, to be
established beyond reasonable doubt, but is to be in accordance with the
preponderance of probabilities as applicable to a civil suit.
In CIT v. Patna Timber Works [1977] 106 ITR 452, the learned judges of the Patna
High Court observed (p. 462):
"The assessse, within the meaning of the Explanation, is required to prove that the
failure to return correct income did not arise from any fraud or gross or wilful
neglect on his part, that means, there is absence of fraud or gross or wilful neglect.
Ordinarily and generally, there cannot be any direct evidence to prove such a fact.
The assessee merely has to place materials of the primary facts or the
circumstances which in all reasonable probability would show that he was not guilty
of any fraud or gross or wilful neglect. He may discharge this onus by placing the
facts found in the assessment order to show that the facts found therein had not in
the least given an inkling of fraud or gross or wilful neglect on the part of the
assessee and, therefore, it must be held without proof of any other fact that there
was no fraud committed by the assessee in his failure to return the correct income
nor was he acting grossly or wilfully negligently."
In Vishwakarma Industries v. CIT 1982] 135 ITR 652, the Full Bench of the Punjab
and Haryana High Court had occasion to consider the effect of the Explanation.
After noticing the various decisions, the learned judges observed (p. 671):
"The true legal import of the Explanation is to shift the burden of proof from
the department on to the shoulders of the assessee in the class of cases where
the returned income was less than 80 per cent, of the income assessed by the
department.
In CIT v. Ratanlal Mishrilal [1983] 143 ITR 929, the learned judges of the Madhya
Pradesh High Court observed (p. 932):
"But if the total income returned was less than 80 per cent, of the total income
assessed, the burden is on the assessee to prove that the failure to return the
correct income did not arise from fraud or any gross or wilful neglect.
The distinction between "burden of proof" and "onus of proof" has been considered
in Kundan Lal v. Custodian, Evacuee Property (AIR 1961 SC 1316) in which the Hon'ble
Supreme Court observed: "The phrase 'burden of proof' has two meanings - one the
burden of proof as a matter of law and pleading and the other the burden of
establishing a case; the former is fixed as a question of law on the basis of the
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154
pleadings and is unchanged during the entire trial, whereas the latter is not
constant but shifts as soon as a party adduces sufficient evidence to raise a
presumption in his favour. The evidence required to shift the burden need not
27
153
152
Charge No
151
establish
misrepresentation,
necessary
facts
30
150
order to gain by another's loss. It is a cheating intended to get an
advantage. ( S.P. Chengalvaraya Naidu v. Jagannath.)
It is also well settled that misrepresentation itself amounts to fraud. Indeed,
innocent misrepresentation may also give reason to claim relief against fraud.
A fraudulent misrepresentation is called deceit and consists in leading a
man into damage by wilfully or recklessly causing him to believe and act
on falsehood. It is a fraud in law if a party makes representations, which
he knows to be false, and injury ensues there from although the motive
from which the representations proceeded may not have been bad. ...Fraud
and deception are synonymous. Although in a given case a deception may not
amount to fraud, fraud is anathema to all equitable principles and any affair
tainted with fraud cannot be perpetuated or saved by the application of any
equitable doctrine including res judicata. ( Ram Chandra Singh v. Savitri
Devi.)
In Black's Legal Dictionary, fraud is defined as an intentional perversion
of truth for the purpose of inducing another in reliance upon it to part
with some valuable thing belonging to him or surrender a legal right; a
false representation of a matter of fact whether by words or by
conduct, by false or misleading allegations, or by concealment of that
which should have been disclosed, which deceives and is intended to
deceive another so that he shall act upon it to his legal injury.
In Concise Oxford Dictionary, it has been defined as criminal deception, use
of false representation to gain unjust advantage; dishonest artifice or
trick.
In a leading English case i.e. Derry v. Peek, what constitutes fraud was
described thus Fraud is proved when it is shown that a false representation
has been made (i) knowingly, or (ii) without belief in its truth, or (iii)
recklessly, careless whether it be true or false.
But fraud in public law is not the same as fraud in private law. Nor can the
ingredients, which establish fraud in commercial transaction, be of
assistance in determining fraud in administrative law. It has been aptly
observed by Lord Bridge in Khawaja v. Secy. of State for Home Deptt., It
must result in exercise of jurisdiction which otherwise would not have
been exercised. That is misrepresentation must be in relation to the
conditions provided in a section on existence or non-existence of which
power can be exercised. But non-disclosure of a fact not required by a
statute to be disclosed may not amount to fraud. Even in commercial
transactions non-disclosure of every fact does not vitiate the agreement. In a
contract every person must look for himself and ensures that he acquires the
information necessary to avoid bad bargain.'
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149
Suppression of a material document would also amount to a fraud on the
court. (See Gowrishankar v. Joshi Amba Shankar Family Trust and S.P.
Chengalvaraya Naidu case.)
In Gurdial Singh v. State of Punjab, AIR 1980 SC 319, the apex Court held as
under:
The action is bad where the true object is to reach an end different
from the one for which the power is entrusted, goaded by extraneous
considerations, good or bad, but irrelevant to the entrustment. When the
custodian of power is influenced in its exercise by considerations outside
those for promotion of which the power is vested the court calls it a
colourable exercise and is undeceived by illusion. In a broad, blurred sense,
Benjamin Disraeli was not off the mark even in law when he stated: I repeat
. . . that all power is a trust -that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must
exist. Fraud on power voids the order if it is not exercised bona fide for
the end designed. Fraud in this context is not equal to moral turpitude
and embraces all cases in which the action impugned is to effect some
object which is beyond the purpose and intent of the power, whether this
be malice-laden or even benign. If the purpose is corrupt the resultant
act is bad. If considerations, foreign to the scope of the power or
extraneous to the statute, enter the verdict or impel the action, mala
fides or fraud on power vitiates the acquisition or other official act.
It is stated that the penalty was proposed for the non-availability/nonsupply of machinery. The contractor and his supervisor/staff could not
show the Machinery that was to be provided as per the contract. As
detailed in the inspection report, the contractor has provided only One
Water High Jet Pressure Cleaner in place of TWO and that too was out
of order and seen with full of cobwebs and dust spread on it. (Can see
the video) Had the machine being used twice daily as per the schedule,
the condition of the machine would not have been like that. A
photograph and video was also taken during the inspection. Three
Garbage trolleys, One high Power Vacuum Cleaner, One knapsack
sprayer were not provided. Only one out of TWO flipper machines was
in working condition. Had these machineries been used daily 2 or 4
times as per the schedule, the contractor staff would have located and
produced them instantly. The video clearly shows the condition of
the machinery and how the cleaning staff was cleaning the
station with the manual scrubber pads, normal water pipe
pressure and coconut brooms. Had the DA seen the video he must
have appreciated. Or it is not known whether he has seen the video or
does not want to admit the fact even after watching the video.
It is also to be noted by the learned DA that I have proposed the
recoveries conservatively based on the original estimated rates and not
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147
itself proves that the machinery were not working since the date
of the inspection i.e., 12.05.12 to 04.08.12 i.e., the date of the
notice of CMS which was highlighted in the letter written by my office
on 03.09.12. If per day penalty proposed by the CMS is agreed,
then the penalty on the break down machinery itself works out
to Rs. 85,000/Item no.24 of the CMS note dated 27.08.12 states that in the
agreement there is no clause regarding maintenance of
attendance register. HI is informally asked to maintain register to
oversee that total staff positions of 34 are maintained every day. But
the statement is factually incorrect. Sl. No. 25 of the Special
Conditions says ...The muster roll of the staff of contractor will be
maintained by Health Inspector/Sambalpur
Sl. No. 21 of Special Condition also stipulates the bidder shall
have a local office in Sambalpur from where services on
mechanised systems shall be rendered within 24 hours for any
breakdown. This implies that managing the cleanliness with
additional manpower in case of breakdown is limited for 24 hours only
and not for the period beyond. In the instant case, the contractor has
provided only half the number of machinery as provided in the contract
and whatever the machinery provided was also out of order and not put
to use.
It is agreed that the amount proposed for recovery for the
failure of supply of machinery is approximately the cost of the
machinery. It is done so because, the contract was on the verge
of the expiry and the contractor has not provided the machinery
since the beginning of the contract. So it is felt prudent that the
estimated cost that was provided in the estimate is proposed for
recovery. It is to be understood that this is also a conservative
proposal instead of levying penalty for executing manually the
Mechanised Cleaning work without machinery. It is also further
may be appreciated that I have not proposed any recovery for the
broken down machinery, but only for the machinery that were
not available at the time of inspection.
It is to be understood by the learned DA that the mechanised cleaning
contract will become a farce, if no machinery is used for cleaning the
station. Thus, the charges framed by the learned DA are baseless.
Charge No.
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provisions of the Contract Agreement and when the total annual value of the
contract was Rs.16 lakhs.
This statement that the maximum penalty that can be imposed is .5000 is
totally untrue and is a result of casual reading of the provisions of the
contract conditions and the penalty conditions. A careful reading of the
penalty conditions mentioned in the Para-9 of Annexure-III will make it
clear that In case of unsatisfactory performance with regard to cleanliness of
SAMBALPUR STATION as per subject, name & description of work, schedule of
work and terms & conditions of Agreement pointed out during daily and
periodical inspections by Railway officials, the contractor will be penalized to
the minimum of Rs.500/- to maximum of Rs.5000/- in each
occasion/classification of deficiency as mentioned below. Railways
decision regarding quality of cleanliness and imposition of penalty due to nonexecution of work as per the terms and conditions of agreement would be the
final binding on the contractor.
It is clear that a maximum penalty that can be levied for each
classification of deficiency on each occasion would be .5000 and not
simply on each occasion as stated by the learned DA. Still if DA has
any doubt regarding the meaning of the Para and interpretation of the
clause, he may take the legal opinion on the matter. Thus the contention
of the DA is repudiated. It is to be stated that whatever the penalties
proposed are well within the provisions of the contract conditions and
the penalty conditions incorporated in it. As per clause (q) of
Annexure-III any other deficiencies pointed out by Inspecting official
and not indicated in above classified items, fine up to the discretion of
the inspecting official can be levied. Thus nothing can preclude me in
imposing penalty within the provisions of the contract.
The learned DA, while issuing the charge memo has acted in a hurry without
going through the provisions of the contract in a careful manner. Thus the
charges are baseless.
Charge No.
e) As per terms and conditions of any contract, the officer, who is operating
the contract and has signed the contract, on behalf of the President of India,
is authorized to impose a penalty on the contractor for his acts of omission
and commission. Any and every inspecting Official can't impose a financial
penalty on the contractor. An inspecting Official can only bring the
shortcomings to the notice of the officer operating the contract and it is
for the officer concerned to impose a penalty, as per his judgement.
145
on
the
144
position as public servant" that a dishonest element on the part of the public
servant while obtaining a valuable thing should be established. The words
"otherwise abusing his position as public servant" do not confine merely to
misuse of his position as public servant, but such misuse must be with a
dishonest mind. Unless it is established that the public servant obtained pecuniary
advantage for himself or for any other person by dishonestly misusing his position as
public servant, the offence under Section 5(1)(d) of the Act will not be made out.
Therefore, the essential ingredient of the offence is obtaining pecuniary
advantage by dishonestly misusing his position as a public servant.
From the above discussion, it can be understood that misuse or abuse of
position must necessarily involve dishonesty causing loss to the
department. There should be an element of pecuniary advantage for
which any person has misused his position. In the above charge memo,
the learned DA has simply used the word by misusing his position but did
not explain or tried to prove that I am involved in any dishonest practise of
causing loss to the department or derived any pecuniary advantage for myself
or for any other person. Hence, it is stated that the charges levied against me
are totally baseless and without any substantiating evidence. There is not an
iota of evidence that the DA can submit in support of the serious
charges made against me. I take strong objection for levelling charge of
misuse of position.
It is stated by DA that CMS/SBP vide his letter No.CMS/ECoR/SBP/Mechanised
Cleaning, dated 04.08.2012, informed the Sr.DFM that in compliance to the latter's
inspection note, he had imposed a penalty of Rs.10,000/- on the contractor and had
taken corrective measures to avoid recurrence of the deficiencies in future.
Further stated by the DA, Instead of taking the matter to higher authority
for review, Shri Y. Anand, the then Sr.DFM/SBP maintained his earlier stand
regarding realization of the penalty to the tune of RS.11,37,854/- from the
contractor and on the plea of the said unreasonable quantum of penalty, did not
arrange payment against the on account bill in favour of the contractor (CC-7 for the
period from 28.03.12 to 27.06.12) and returned the same, vide his Letter
NO.Sr.DFM/SBP/Cleaning/DB/6141, dated 03.09.2012. Shri Anand remained
adamant on his own decision and created an impasse over the matter, which in
turn, brought inconvenience and embarrassment to the administration.
The rationality and reason for returning the bill and how I have tried to take
the matter to the knowledge of the higher authorities are discussed in detail
above, elsewhere. It is further stated that I have not created any impasse
over the issue. In fact it is the Medical department and the DRM, who have
created an impasse because of their inaction and indecisiveness and failure to
take timely action and decision. And whatever the inconvenience or the
embarrassment is caused to the administration is caused by them.
It was further stated by the DA that While the currency of contract was to expire
on 27.08.12, prior to it, it was agreed by the contractor on 06.08.12 for extension of
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the contract for another three months. However, the non-payment of bills in time
led to a situation such that the contract could not be further extended, as the
contractor, vide his letters, dated 14.08.12 & 24.08.12, refused to mutually extend
the currency of the contract.
It is stated that the contractor in his letter dated 14.08.12 (after the said bill
was returned by my office on 09.08.12) has mentioned presently I am
unable to run for the further period of 03 months due to my personal
problem and no where he has mentioned about the financial hardship or the
nonpayment of bill. Only at a later date i.e., 24.08.12 he has mentioned, I
have not yet received any payment from 28.03.12 to till date, though
as per agreement, payment should be made on monthly basis.
(Annexure -X)
The pertinent question here is why the contractor has not claimed the
bill on monthly basis as per the agreement? Why there was a delay of
4 months in claiming the payment? The medical department kept the
bill for 25 days before sending the bill. What was the reason for
keeping the bill with them? When the bill was returned on 09.08.12
why it took 18 days for resubmission? All these questions need to be
answered before anyone blames me.
As per the Vigilance Manual Para-1.6.1 Vigilance angle is obvious in the
following acts:
(i) Demanding and/or accepting gratification other than legal remuneration in
respect of an official act or for using his influence with any other official.
(ii) Obtaining valuable thing, without consideration or with inadequate
consideration from a person with whom he has or likely to have official
dealings or his subordinates have official dealings or where he can exert
influence.
(iii) Obtaining for himself or for any other person any valuable thing or
pecuniary advantage by corrupt or illegal means or by abusing his position as
a public servant.
(iv) Possession of assets disproportionate to his known sources of income.
(v) Cases of misappropriation, forgery or cheating or other similar criminal
offences.
1.6.2 There are, however, other irregularities where circumstances will have
to be weighed carefully to take a view whether the officers integrity is in
doubt. Gross or willful negligence; recklessness in decision making;
blatant violations of systems and procedures; exercise of discretion in
excess, where no ostensible public interest is evident; failure to keep
the controlling authority/superiors informed in time these are some of the
irregularities where the disciplinary authority with the help of the CVO should
carefully study the case and weigh the circumstances to come to a conclusion
whether there is reasonable ground to doubt the integrity of the officer
concerned.
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The instant case has a serious vigilance angle and a detailed and impartial,
independent inquiry is warranted on the following irregularities:
1. Discrepancy in the maintenance of Attendance Register. The register
has entries of 34 staff only and THREE staff namely Ms Sunita, Ms
Ashtmi and Ms. Geeta has been repeated in 2nd shift also since the
commencement of the contract on 28.08.2010 to 31.12.2011. The
names of TWO staff namely Ms. Ashtmi and Ms. Geeta have been
repeated from 01.01.2012 to 31.07.2012 and ONE name i.e., Ms.Geeta
has been repeated in the month of August 2012. The note of CMS dated
27.08.12, item no. 24 mentions that due to non availability of men at
times, same safaiwala are engaged in 2nd shift as well and compensated
by additional remuneration. The contractor failed to produce any
document in support of any additional remuneration provided to them
for their working in extra shift throughout. The engagement of staff for
more than 8 working hours continuously throughout the contract period
is a clear violation of the existing Labour laws.
2. There is no Attendance maintained for the 3 Supervisors, the contractor
has to engage for the supervision of the contract. The contractor could
not tell the names of all the 3 supervisors. Only Sri. Amit was named as
supervisor who was present during inspection.
3. There is no Register maintained for recording the period of the
breakdown of machinery and the details of the repairs.
4. The CMS note on 04.08.12 itself admits that the machinery was out of
order and notice to the contractor issued on 04.08.12 for its repair
within 15 days. This clearly shows that the machinery were out of order
since the date of inspection i.e., 12.05.2012 to till the date of issue of
notice by CMS. It is also mentioned in the CMS note that as per HI
report all machines are already working. But after examining the HI
report nowhere it is mentioned that the machines were got repaired by
the contractor after the issue of notice. Sl. No. 7 of HIs report only
mentions about the condition on the date of inspection. This is simply
not followed. The inspection was conducted on 12.05.12 and nonworking of machines was reported. But a notice for repair of the same
was given by CMS on 04.08.12 and now it is mentioned that the
machines were already working as per HIs report which was given on
23.08.12.
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5. There is a huge discrepancy in the names mentioned in the attendance
register and the Wage Payment statement witnessed by the HI and
SMR. As per the statement of payment of wages witnessed by SMR/SBP
only 34 numbers of staff are available. There is no payment details of
the RG/LR staff provided. For the month of April, 2012 the Wage
payment statement does not contain the names of the Bishnu, Deepak,
Rathi, Ashtmi, Geeta, Manglu, Dhiru and Badal whose names appeared
in the Attendance Register and were present in the entire month.
Similarly for the month of May, 2012 also Gauri, Bhalumati, Rathi,
Bhakto Bag, Kanhu Bag, Bishnu Tandi, Kiran Bag, Deepak Suna who
appear in Attendance register are not appearing in the Wage payment
statement. The same thing repeated in June also. The names of Heena,
Kiran Bag, Bachan Suna, Deepak Suna were not appeared in Wage
payment statement. Moreover there are some names viz., Dharam Rai
Bereha, Ratan Bibhar, Bharat Bag, Amit Das, Yatin Sikandar, Khairu,
Sunita Nag etc., have appeared in the wage payment statement whose
names are not marked in the Attendance register. The names of Amit
Bag and Yatin Sikandar have appeared twice in the wage payment
statement for April month whose names are not available in the
attendance register. The above discrepancy needs to be investigated in
detail.
6. The payments for the supervisors and their names also have not
appeared in the Wage statement.
7. The contractor has not provided the RG/LR as per the contract. Weekly
Rest is being provided to the staff and regularly marked in the
attendance register. Daily 4 or 5 staff is being provided Rest. But no
staffs have been provided in that place. The contractor has to maintain
34 staff and 3 supervisors. If 4 or 5 staff and 3 supervisors are
excluded from the attendance, in effect the contractor has provided
only 26 or 27 staff only.
8. There is no proof except the present marked in the attendance register
that the contractor has provided 8 staff in the night shift. No duty
allocation is being made by the HI or SMR/DySS for the 2nd Night Shift.
9. The Group Janatha Personal Accident Policy taken by the Contractor for
the cleaning contains the names of only 34 staff. Where are the 4/5
names of staff required to be provided for RG/LR and the names of the
3 Supervisors?
10.The labour Licence submitted by the contractor contains the condition in
Sl.NO.2 of Annexure that the no. of workmen employed as contract
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labour in the establishment shall not on any day exceed 34. What about
the 3 supervisors?
11.The contractor also could not produce the details of EPF contributions of
the staff and the matching employers contribution. The same needs to
be investigated.
12.The washable apron at PF-1 A has never been attended as can be seen
in the video.
Perhaps this might be first time in the annals of History of Indian Railways
that an officer has been issued with a Charge Memo for commitment and
devotion to his duty working in the interest and improvement of image of the
organization by highlighting irregularities in the execution of a contract and
who has not caused any pecuniary loss to the railway. It is unfortunate and
disheartening that the officers/staff who are responsible for the irregularities
have remained scot free and a sincere and committed officer is being harassed
in this way by a highest authority of the railway whose responsibility lies in
conducting an independent and impartial inquiry into the incidents. Instead of
conducting an impartial inquiry, the DA has chosen a path of harassing the
sincere officer by proposing to take disciplinary action issuing charge memo
without any factual or legal basis.
It is unfortunate that the DA being the GM, the highest authority of the Zonal
Railway is making allegation/charges of bias against his own officer in support
of a contractor. Normally people outside any organization raise allegations of
bias against the officers of an organization. But the learned DA has invented a
new concept of bias against the contractor by its own officer. But this is a first
of its kind that a highest authority of an organization is making an allegation
against its own officer in support of a contractor. That is, when the officer has
not caused any pecuniary loss to the organization or has not acted detrimental
to the interests of the organization. In the instant case, I have acted in the
interest of the organization, whose main business is transportation of material
goods and the passenger transportation. In the course of it, the organization
has to maintain cleanliness of the station to the highest of the standard in
view of the hundreds of crores of rupees spent on it and is very sensitive in
view of the rising awareness of the customers of their rights. In this case, I
have made a detailed inspection report of failure of cleanliness by the
contractor only to make the system improve.
The learned DA must prove what pecuniary/personal/official/administrative
advantage I have derived or pecuniary loss I have caused to the organization
by the misrepresentation of facts as alleged by him. In the instant case even
a normal prudent person who has seen the video of inspection and studied the
inspection report would say that the cleanliness of the station is
unsatisfactory. I am very much perturbed by the attitude of the higher
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authorities who are targeting me just because I have highlighted the
irregularities of a contractor. Normally we get to see that any staff/officer
would be charge sheeted due to the irregularities, or failing to maintain
integrity and devotion to duty causing loss to the organization, its objectives
and goals. But this is a classic case where an officer is being issued with a
charge memo for doing his duty sincerely with devotion to the organization
goals.
The charge against me is unmerited and unfair. I was made a scapegoat for
the fault of others, who were ultimately responsible to see that the execution
of contract is done as per the conditions of the contract and to the satisfaction
of the railway administration. In this case, all the officers involved right from
the Health Inspector/SBP, Sr.DMO/H&W, CMS, DRM and indirectly even the
GM are responsible for the failure to take timely action. All the above have
remained silent for 3 months till the expiry of the currency of the contract and
have not taken any corrective action but rushed to blame an Accounts Officer.
The DA, should have ordered an impartial inquiry into the incidents before he
has issued any charge memo on me. It appears from the charges framed that
the learned DA has not gone through the penalty conditions, contract
conditions and the special conditions therein and not ascertained the factual
position in the field.
The learned DA has very loosely used the words like gross irregularity,
observations not in accordance with the conditions of the Contract, failed to
appreciate, calculation of penalty have no basis, onus of proving lies on me,
biased approach, gross exaggerations, misrepresentation of facts, deliberate
act of harassing the contractor, exceeded his authority, misused his position
to withhold bills, remained adamant, created an impasse over the matter etc.
all the above words used have no factual or legal basis. No allegations have
been proved by the DA by enclosing the documents. Nowhere in the charge
sheet or imputations of conduct has he proved the irregularities committed by
me.
It is to be understood by the DA that whatever the amount of undue
influences, pressures and threatening or intimidations, I will not succumb or
surrender to any of the external or internal pressures compromising the duties
and responsibilities assigned to me. As a responsible citizen of India, I take
inspiration from the Constitution of India, in not only abiding by the
Constitution and respecting its ideals and institutions, but also cherish and
follow the noble ideals which inspired our national struggle for freedom. To me
truth is paramount and nothing else. And I will be fighting for the truth till the
last breath of my life.
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It is unwise to be too sure of one's own wisdom. It is healthy to be reminded
that the strongest might weaken and the wisest might err.
A 'No' uttered from the deepest conviction is better than a 'Yes' merely
uttered to please, or worse, to avoid trouble.
Silence becomes cowardice when occasion demands speaking out the whole
truth and acting accordingly.
I cannot teach you violence, as I do not myself believe in it. I can only teach
you not to bow your heads before any one even at the cost of your life.
Truthful conduct alone can reach truth
It is good to see ourselves as others see us. Try as we may, we are never
able to know ourselves fully as we are, especially the evil side of us. This we
can do only if we are not angry with our critics but will take in good heart
whatever they might have to say
It's easy to stand in the crowd but it takes courage to stand alone
There's no God higher than truth.
Even if you are a minority of one, the truth is the truth
Non-cooperation with evil is as much a duty as is cooperation with good.
When I despair, I remember that all through history the way of truth and
love has always won. There have been tyrants and murderers, and for a time,
they can seem invincible, but in the end, they always fall. Think of it--always.
An error doesn't become truth by reason of multiplied propagation nor
does truth become error because nobody sees it.
The charge sheet issued by the learned DA suffers from several infirmities and
inherent deficiencies that not a single charge can stand to the legal scrutiny.
The charges are utterly baseless, unfounded, far from truth, wholly vague and
imprecise. Hence learned DA should get an independent investigation report
preferably from Vigilance team and ascertain the factual position about the
irregularities, and if it is proved that I have committed any gross irregularities,
then a fresh charge memo with rational grounds can be issued along with the
other culprits proved guilty. The DA may choose not to investigate for
finding the truth. But at least he should refrain from harassing the
truthful persons.
If common sense and good sense prevails upon the DA, the best of the
judgement would be to drop the charges in toto and restore the respect to the
undersigned in full measure.