High Court
Case Details
WP(C) 4309/2006 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI Both Mr. SK Muktar, learned counsel for the petitioner and Mr. RK Bora, are hear d at length. 2.
Legal Reasoning
In this writ petition, the petitioner is challenging the legality of the order dated 28-6-2005 issued by the Zonal Manager (E)/Disciplinary Authority, F CI, Guwahati (respondent No. 3) imposing penalty for recovery of ‘42,767/- from the pay of the petitioner and the order dated 28.06.2005 issued by the Managing Director, FCI, New Delhi rejecting the appeal filed by him. The facts giving ris e to the filing of this writ petition are that when the petitioner was functioni ng as Asstt. Manager (Cont.), FCI, R.O., Guwahati, the Food Corporation of India (for short (cid:28)Corporation (cid:29)) on 14-10-1996 floated NIT for appointment of regular Transport Contractor on point to point basis for 2 years from New Bongaigaon/Bon gaigaon Railway siding to four godowns including one ASWC godown, Bongaigaon as the fourth godown. Altogether, 7 persons had submitted their tenders. According to the petitioner, after opening the tenders on 08.11.1996, the dealing assistan t in the Contract Section, FCI, R.O., Guwahati made calculations of the rates qu oted by different tenders and had shown that one Sri Hemandrajit Thakuria had qu oted the lowest average rates for the said four godowns. The entire documents of the Transport Contractor were then placed before the Preliminary Committee, of which the petitioner happened to be one of the four members. It is the case of t he petitioner that as the said Hemandrajit Thakuria had quoted the lowest rate f or three godowns, the Preliminary Committee recommended his case to the Final Co mmittee for negotiation of the rate for the 4th godown as his rate was not the l owest for the same. After the negotiation, the Final Committee on 19.12.1996 fin alized the negotiated the rate at ‘34.50 with Sri Hemandrajit Thakuria and recom mended this negotiated rate together with the rates for the other three godowns for acceptance. 3. It is the further case of the petitioner that on 04.02.2004, the Corpora tion, however, issued the memorandum of charges against him alleging that he bei ng a member of the Preliminary Committee failed to maintain absolute integrity a nd devotion to duty in recommending the award of contract to Sri Hemandrajit Tha kuria by working out the average of 4 (four) rates quoted by them instead of det ermining the lowest tender on the basis of the rates quoted by different contrac tors for different godowns, which led to a loss of ‘1.71 lakhs to the Corporatio n. The petitioner duly submitted his reply denying all the charges. The Discipli nary Authority, by the order dated 19/28.07.2004 inter alia stated that the 4 (f our) members of the Committee of the Regional Office misled the competent author ity to accept the rate computed to be lowest on average basis and the loss of Rs .1.71 lakhs needed to be shared equally by all the four Officers. The Disciplina ry Authority, accordingly, imposed a penalty for recovery of ‘42,767/- from the pay of the petitioner in five monthly instalments. The appeal preferred by the p etitioner against the impugned penalty was rejected by the Appellate Authority b y the order dated 28.06.2005. It may be noted that the petitioner had in the mea ntime retired from service as Asstt. Manager (Genl), FCI, RO, Guwahati on Volunt ary Retirement Scheme w.e.f. 30.09.2004, but the competent authority recovered ‘ 42,767/- as a penalty from his pension at the time of his retirement. The griev ance of the petitioner is that the respondent authorities dropped the proceeding s against his colleagues, namely, Sri Homeswar Goswami, who was also a Member of the Preliminary Committee and no action was taken against Sri S. Radhakrishnan, Deputy Manager, S&C, who was also a Member of the Preliminary Committee whereas a penalty for recovery of ‘42,767/- had been imposed upon him and one Sri Mahes h Baishya, who was also the member of the Preliminary Committee. It is the conte ntion of the petitioner that all the members of the Preliminary Committee should have been treated equally and the action of the respondent authorities in reali sing the penalty from the petitioner is, therefore, arbitrary and discriminatory . This is how the writ petition came to be filed. 4. The writ petition is opposed by the respondent-Corporation by filing the ir affidavit-in-opposition. The case of the respondent is that the Preliminary C ommittee consisting of the petitioner, Sri Kiran Ch. Baishya, Shri M. Baishya, S ri Homeswar Goswami and Sri S. Radhakrishnan, who were the officials of the Corp oration, after analysing the different rates submitted by the 7 tenderers recomm ended vide their minutes dated 05.12.1996 that the lowest quoted average of ‘12. 75 per MT in respect of Shri Hemandrajit Thakuria (who had quoted the rate of 4 routes as ‘5.00, ‘5.00 and ‘6.00 for CRTC, private party godown and private part y godown respectively, ‘35.00 for ASWC godown) is lesser than all other rates. A ccording to the Preliminary Committee, as for the 4th route, the rates quoted by the said Hemandrajit Thakuria were not lowest and the lowest rate was quoted by one Sri SS Hussain at the rate of ‘28.87. It is the case of the respondents tha t the Preliminary Committee, ignoring this vital aspect of the matter vide their minutes dated 05.12.1996 recommended negotiation with the lowest tenderer, Shri Hemandrajit Thakuria to reduce his rate against the route No. 4 i.e. ASWC godow n. The official concerned with processing the tender on the file, agreed with th e recommendation of the Preliminary Committee for holding of negotiation with Sh ri Hemandrajit Thakuria. The next higher authority (cid:28)Negotiation Committee (cid:29) compr ising of DM (S&C), JM (F&A), RM and SRM held negotiation and the said Hemandraji t Thakuria reduced his rates from ‘35.00 to ‘34.50 per MT only for route No. 4 a nd ‘5.00 per MT for route No. 3. The negotiated rates in respect of the tender o f the said Hemandrajit Thakuria was, eventually, approved by the Senior Regional Manager, who conveyed his acceptance to the tenderer indicating that the negoti ated rate of ‘5.00 each for route No. 1, 2 & 3 and ‘34.50 for route No. 4 calcul ating the average rate of ‘12.37 on point to point basis for the entire distance had been accepted. 4A. It is also the specific case of the respondent authorities that in terms of the aforesaid rates accepted on the basis of the recommendation of the Preli minary Committee, a clear loss of ‘1,71,068.42 was thus caused to the Corporatio n by awarding the contract to Shri Hemandrajit Thakuria at the rate of ‘34.50 by determining him to be the lowest tenderer on the basis of the average rate basi s for ASWC godown instead of awarding the contract for this godown to the lowest contractor (tenderer?), namely, Shri SS Hussain. The respondent authorities cle arly blamed this loss on the members of the Preliminary Committee, which ultimat ely lead to the issuance of the impugned orders. It is the further case of the r espondent authorities that the said Sri Homeswar Goswami, who happened to be a C ategory-I Officers was issued show cause by the Disciplinary Authority and on re ceipt of his reply, the same was accepted by the competent authority and no acti on was taken against him. In so far as Sri S. Radhakrishnan, the then DM (S&C) i s concerned, he had retired from the service of the Corporation before any actio n could be taken against him. With respect to Sri NC Gautam, GM (Region) (SRM), the respondent-Corporation assert that he was not involved in awarding of averag e contract of Bongaigaon in question, as contended by the petitioner. As far as Category-II Officers like the petitioner, the Executive Director (E) (Zonal Mana ger) being the competent Disciplinary Authority initiated departmental inquiry a gainst them for their involvement on awarding of contract on average rate in res pect of Bongaigaon and Nagaon. Sri Mahesh Baishya, who happened to be a member o f the Preliminary Committee was proceeded against and was penalised for recovery of ‘42,767/-. However, the petitioner was proceeded with and penalized for his lapses and involvement in the case as dealing Assistant Manager (Contract) [Re-d esignated Manager (Contract)] and also being a member of the Preliminary Committ ee. The answering respondents therefore, denied that there was any illegality in imposing impugned penalty upon the petitioner. These are the sum and substance of the case of the respondent authorities. After going through the pleadings of the parties and after examination o 4B. f the documents annexed thereto, I am constrained to observe that the petitioner has been given a raw deal by the respondent authorities. In the first place, it may be noted that the petitioner was merely a member of the Preliminary Committ ee and was not involved in the final decision-making process. The function of th e Preliminary Committee was to consider and frame the rates quoted by the 7 tend erers and to recommend the tenderers, whose rates are found to be lowest. After opening the tenders on 08.11.1996, the concerned dealing assistant in the Contra ct Section made the calculations with respect to the rates quoted by the differe nt tenderers and that the said Hemandrajit Thakuria had quoted the lowest rates for the said four godowns on average basis. At this stage, it may be noted that the lowest rate quoted by the said Hemandrajit Thakuria was in respect of three (3) godowns whereas the rate of ‘35/- quoted by him for the 4th Godown/route was not the lowest. Nevertheless, the Preliminary Committee recommended that the ra te quoted said Hemandrajit Thakuria in respect of the 4th godown could be negoti ated and got the rate reduced. The petitioner never made any misrepresentation i n this behalf: the fact that the rate quoted by the said Hemandrajit Thakuria wa s not the lowest was duly highlighted in the recommendation of the Preliminary C ommittee. It is not the case of the respondent authorities that any material fac ts were suppressed or misrepresented by the Preliminary Committee while making t heir recommendations. In their wisdom, the Preliminary Committee recommended tha t the person, who quoted the lowest tenders in respect of the 3 (three) godown, might also given an opportunity to reduce his rate in respect of Godown/Route No . 4 in the interest of commercial viability. That was all that the Preliminary C ommittee indicated in their recommendation. It is for the Final Committee to acc ept or reject the recommendation or to come to a different conclusion. Perhaps, it was for this reason that no tangible penalty was awarded to Sri Homeswar Gosw ami. This is a case in which the Final Committee apparently abdicated its functi on and when financial loss was incurred by the Corporation, the recommending aut hority was made the scapegoat for the lapses of the Final Committee and some of the members of the Preliminary Committee penalised while the members of the Fina l Committee, who actually took the ill-fated decision were given a clean chit. I t may be noted that the said Homeswar Goswami, who was also a Member of the Prel iminary Committee like the petitioner, was exonerated from all liabilities, wher eas Sri S. Radhakrishnan, who was also a Member of the Preliminary Committee was not proceeded against at all, which, according to the learned Standing Counsel, was occasioned by his retirement on superannuation. Under the circumstances, I failed to understand as to how the petitioner can be chosen along with Sri Mahes h Baishya for punishment. In the case of Sri Mahesh Baishya, who was also a Memb er of the Preliminary Committee, similar penalty was imposed upon him, but he wa s apparently quite satisfied with the penalty imposed upon him and did not chall enge the penalty imposed upon him: I have nothing to comment upon this. It is to be noted that Sri NC Gautam, GM (Region) (SRM), who was also a member of the Fi nal Committee was merely awarded a penalty of censure along with Shri L.C. Gogoi , the then JM (F&A). It, therefore, stands to reason that the penalty imposed up on the petitioner is irrational and arbitrary as well as discriminatory. This ca lls for the interference of this Court.
Decision
For what has been stated in the foregoing, this writ petition succeeds. 5. The impugned order dated 28.07.2004, imposing penalty for recovery of ‘42,767/- from the petitioner as well as the Appellate Authority Order dated 28.06.2005 (A nnexure-F) rejecting the appeal preferred by the petitioner are hereby quashed. The respondent authorities are, therefore, directed to refund the sum of ‘42,767 /- recovered from petitioner within a period of 1 (one) month from the date of r eceipt of the certified copy of this order failing which the respondent authorit ies shall pay interest at the rate of 8% per annum from the date the recovery wa s made from the petitioner. The writ petition stands disposed in the above terms . No costs.