Defence

180

Representation of Sri Y.Anand, the then Sr.DFM/SBP and now working
as Dy.FA&CAO(G) in defence against the charges levelled vide
Memorandum No. ECoR/Pers/D&A/Gaz/YA/MNR, dated 28.09.2012
Before discussing the defence against the charges levelled against me, it is felt
that it would be pertinent to narrate the series of incidents that happened in
connection with my inspection report on the execution of ‘Mechanised
Cleaning Contract for Sambalpur Station,’ sequel to which the current Charge
Memo has been issued.
A Contract Agreement for mechanised cleaning of Sambalpur Station vide
NO.CMS/SBP/Mechanised Cleaning/SBP/10-11/1, dated 26.10.10, signed and
executed between Sr.DMO/SBP, for and on behalf of the President of India,
and Sri Dayanidhi Biswal for the period between 28.08.2010 to 27.08.2012 for
Rs.32,00,000. The contract provides for round the clock attention for the
mechanised maintenance of cleanliness in the station.(Annexure-I) The station
was inspected by me along with Sr.SOs Sri P.K.Satpathy, Sri J.Sanga, and Sri
D.D.Sahu on 12.05.12.
During the inspection several deficiencies/irregularities/lapses were found in
the execution of the Mechanised Cleaning Contract, which were highlighted in
the inspection report dated 21.05.2012. A video recording also has been made
out and sent to DRM/SBP and CMS/SBP along with inspection report. The
basic intention behind sending the video CD to them is to show the pathetic
conditions of the Station premises, so that a decision at higher level will be
taken to improve the conditions. (Annexure –II, Annexure-III-VCD)
Stringent penalty conditions were available in the contract and a detailed
calculation of proposed penalties/recoveries was done which amounted to
Rs.11,37,854 for violating the provisions of the contract.
It was requested in the inspection report, that DRM/SBP may take
final decision regarding the imposition of penalty and the termination
of the contract for failure of the contractor.
Instead of giving compliance remarks, the CMS/SBP has sent a note to
Sr.DFM/SBP on 12.06.2012 making casual comments, “the assessment has
been subjective; imposition of such a huge fine appears ridiculous; no
item has appeared in the newspaper; no complaints have been
received from the travelling public” and so on. (Annexure-IV)
Immediately after seeing the note of CMS, I have sent the note of the CMS
and the inspection report along with video CD to FA&CAO and Secretary to GM
for information of GM on 13.06.12. (Annexure-V) I spoke to Secretary to GM
over the phone before sending my report to him. Then I was waiting for the
response from the HQ over my report.

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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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I was on leave in the period between 25.08.12 to 02.09.12. The GM called me
on 27.08.12 morning asked me, how I can impose a penalty of Rs.11 lakhs
which is more than 30% of the contract value of Rs.32 Lakhs. I said that I
have not imposed any penalty but only proposed the penalty as per the
conditions of the contract due to the deficient services and providing
less number of staff thereby violating the contract conditions. Then GM
asked me to come and convince him and if I failed in convincing him, I
will be issued with SF-11. I said sure Sir, I will come and convince, but I
am on leave and will be returning to SBP on Sunday i.e., 02.09.12. Then GM
asked me to come and meet him on Monday i.e., 03.09.12. When I have
contacted Secretary to GM on 30.08.12 to confirm the timing of the
meeting on 03.09.12, I was told that meeting is not required.
Meanwhile, I was transferred from SBP to BBS as Dy.FA&CAO(G) on 28.08.12
and has joined on 04.09.12. (When I called the Secretary to GM over phone
for getting the meeting time confirmed, I was not answered. Then I thought
he might be busy, so I sent an SMS asking him to confirm the timing of the
meeting. I got the return SMS, “Meeting not required. Treat is cancelled”.
Then again I sent SMS “Sir, if you wish to tell I want to know from you why
meeting has been cancelled, why I have been transferred, whether GM knows
all the facts regarding my inspection report on SBP and field situation, CMS
note, their inaction for 3 months”. I got reply “Your FA and FA/G should be
able to tell you what has transpired. Can’t ask GM why he wants or does not
want to meet you. Only thing I know is when DRM says he can’t work with an
officer, there is little choice but to have a transfer.)
I thought since I have been transferred in the meanwhile, the meeting might
have been cancelled. I remained silent and did not contact further regarding
the meeting. Suddenly to my dismay the Charge memo has been issued on
08.10.12.
Now comes the pertinent point of examining the Imputations of Misconduct as
stated in the Annexure – I
Before that a clear understanding of the role of an Accounts Officer and the
Finance Department in the Indian Railways needs to be made.
Para 101 of Accounts Code details the Functions of the Accounts Department. The Accounts Department of a Railway Administration is mainly responsible for:(a) Keeping the accounts of the railway in accordance with the prescribed rules:
(b) The check with reference to rules or orders (Known as “Internal Check”) of
transactions affecting the receipts and expenditure of railway;
(c) Prompt settlement of proper claims against the railway;

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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,

participation in purchase/contracting decisions and surveys for major schemes in
accordance with the relevant rules and orders; and
(g) Seeing that there are no financial irregularities in the transactions of the
railway.
Para 107 of Accounts Code...In the proper and the legitimate discharge of their
responsibilities the executive officers are authorized to incur expenditure within
the limits of their financial powers. All claims against the railway arising out of
such

authorization

of

expenditure

are

checked

(in

accordance

with

the

prescribed rules) on behalf of the Railway Administration by the Accounts
Officer who arranges to settle the claims which are found to be in order....
Para 108 of Accounts Code: In cases where an Accounts Officer is unable to
accept as proper any orders of an executive authority or any claims arising
there from, he should bring to the notice of such executive authority the nature
of the impropriety or irregularity and suggest the proper and regular course of
action under the extant rules and orders. In the event of a disagreement between
the Accounts Officer and the executive, the following procedure should be
followed:(a) If the disagreement is between an executive officer other than the General
Manager and an Accounts Officer other than the financial Adviser and chief
Accounts Officers, the Accounts Officer should furnish a short note of his
objection to the executive officer and ask him to obtain the decision of the General
Manager. He should at the same time furnish a copy of his note to the Financial
Adviser and Chief Accounts Officer.
(b) If the matter is settled to the satisfaction of the Financial Adviser and Chief
Accounts Officer, he will issue, the necessary orders to the subordinate Accounts
Officer. If, however, the General Manager and the Financial Adviser and Chief
Accounts Officer are unable to come to an agreement; the former should consider
himself under an obligation to make a reference to the Railway Board when so
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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)

the recognised standards of financial propriety vide paragraph 116 of
Financial Code.

Para 815 of Accounts Code: Scrutiny of Expenditure:-All claims against the
railway should be scrutinized to see(a) that the expenditure is incurred by an officer competent to incur it ;
(b) that the remission of revenue has been sanctioned by competent
authority;
(c) that all prescribed preliminaries to expenditure have been observed, e.g.
that proper estimates have been framed and approved by competent authority for
works expenditure;
(d) that it is covered by the grant at the disposal of the officer incurring it
or by funds re-appropriated by competent authority for the purpose;

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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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174
That if the proof of the correctness of a claim does not accompany the bill (e.
(f)

g. the leave account of a subordinate for whom leave salary is drawn), a
certificate is furnished that the claim has been checked with the relevant
document and found correct;
That if the bill is for tools or other articles of equipment for which an

(g)

inventory is prescribed, it has been certified by the departmental officer that
the necessary entries have been made in the relevant stock Account.

Note: in respect of internal checks of Pay Bills, please refer to Chapters XIII to
XIV.

Para 840 of Accounts Code: Propriety of Expenditure:-It is an essential
function of the Accounts Officer to bring to light not only cases to clear
irregularity but also every matter which in his judgment appears to involve
improper expenditure or waste of public money or stores even though the
accounts themselves may be in order and no obvious irregularity has occurred.
It is thus not sufficient to see that sundry rules or orders of competent
authority have been observed. It is of equal importance to see that the broad
principles of orthodox finance are borne in mind not only by Executive Officers
but also by sanctioning authorities.
Para 841 of Accounts Code: No precise rules can be laid down for regulating the
course of internal check against propriety. Its object is to support a reasonably
high standard of public financial morality, sound financial administration and
devotion to the financial interests of the Government. Accounts officers, in the
performance of their duties should, in any case, apply the general principles laid
down in paragraph 116 of Financial code which have for long been recognized as
standards of financial propriety.
Para 843 of Accounts Code: Check of Records not submitted to the Accounts
office:-Initial records which are not submitted to the Accounts office in support
of claims or in support of the correctness of an account of receipts or
expenditure rendered to the Accounts office should be inspected locally to such
extent as the Financial Adviser and Chief Accounts Officer may prescribe subject to
the general orders contained in Chapter XVII.
844 of Accounts Code: Irregular Payment and Objections:(1) There should ordinarily be no irregular payments in connection with expenditure
subject to pre-check. Claims which are not susceptible of internal check should be
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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)

Claims though technically open to objection e. g. want of proper allocation or of
sanction to estimate or appropriation must be admitted if they are prima facie
correct and if the railway is clearly liable for them and claims which are open
to substantial objection but which do not affect the title of the payee to the
amount claimed may be admitted at the discretion of the Financial adviser and
Chief Accounts Officer if the postponement of disbursement till the removal
of the objection is likely, in his opinion, to cause undue delay and hard ship to
the payee. Certain claims may, in the opinion of the Accounts Officer be
irregular but General manager or any subordinate authority to whom the power
has been delegated (vide paragraphs 1103-G and 1136-E) may in spite of the
view of the Accounts Officer take upon himself the responsibility of ordering
that the claim be accepted. In all such cases where claims considered as
technically open to objection or regular by the Accounts Officer are passed as
technically open to objection or irregular by the Accounts Officer are passed
for payment the expenditure should be passed provisionally and placed under
objection.

(2)Payments made before scrutiny by the Accounts office, if found to be irregular in
internal check, should also be placed under objection.
Para 108 of Finance Code-I: The main function of the Finance Branch under the
control of the Financial Adviser & Chief Accounts Officer is to assist the Railway
Administration in considering all proposals involving financial implications in
accordance with the generally accepted standards of financial prudence and
propriety…The success of the Finance Branch would depend on the spirit and the
manner in which its services are utilised by the Executive Departments. The
relations between the latter and the Finance Branch should, like all interdepartmental relations, be based on mutual confidence and free and full
consultation.
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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 Black’s 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 Aiyar’s 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 Hon’ble 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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administrative ability while holding a high post would themselves constitute
misconduct. If it is so, every officer rated average would be guilty of misconduct.
Charges in this case as stated earlier clearly indicate lack of efficiency, lack of
foresight and indecisiveness as serious lapses on the part of the respondent. These
deficiencies in personal character of personal ability would not constitute
misconduct for the purpose of disciplinary proceedings.
It would be appropriate at this stage to ascertain what generally constitutes
misconduct, especially in the context of disciplinary proceedings entailing penalty.
Code of conduct as set out in the Conduct Rules clearly indicates the conduct
expected of a member of the service. It would follow, that conduct which is
blameworthy for the Government servant in the context of Conduct Rules would be
misconduct. If a servant conducts himself in a way inconsistent with due and
faithful discharge of his duty in service, it is misconduct [see Pierce v.
Foster(1)].
This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional
Superintendent, Central Railway, Nagpur Division, Nagpur, and Satubha K. Vaghela v.
Moosa Raza. The High Court has noted the definition of misconduct in Stroud's
Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors
of judgment, or innocent mistake, do not constitute such misconduct". In
industrial jurisprudence amongst others, habitual or gross negligence constitute
misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti
Patnaik, case it was observed that “in the absence of standing orders governing the
employee's undertaking, unsatisfactory work was treated as misconduct in the
context of discharge being assailed as punitive”. In S. Govinda Menon v. Union of
India case it was observed, “the manner in which a member of the service discharged
his quasi judicial function disclosing abuse of power was treated as constituting
misconduct for initiating disciplinary proceedings”. “A single act of omission or
error of judgment would ordinarily not constitute misconduct, though if such
error or omission results in serious or atrocious consequences the same may
amount to misconduct” as was held by this Court in P. H. Kalyani v. Air France,
Calcutta, wherein it was found that the two mistakes committed by the employee
while checking the load-sheets and balance charts would involve possible accident to
the aircraft and possible loss of human life and, therefore, the negligence in work in
the context of serious consequences was treated as misconduct. It is, however,
difficult to believe that lack of efficiency or attainment of highest standards in
discharge of duty attached to public office would ipso facto constitute misconduct.
There may be negligence in performance of duty and a lapse in performance of duty
or error of judgment in evaluating the developing situation may be negligence in
discharge of duty but would not constitute misconduct unless the consequences
directly attributable to negligence would be such as to be irreparable or the
resultant damage would be so heavy that the degree of culpability would be very
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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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constitute a charge of misconduct, it would impinge upon the independent
functioning of quasi-judicial officers like the appellant. The charge-sheet, if
sustained, will thus impinge upon the confidence and independent functioning of a
quasi-judicial authority. The entire system of administrative adjudication where
under quasi-judicial powers are conferred on administrative authorities, would
fall into disrepute if officers performing such functions are inhibited in
performing their functions without fear or favour because of the constant
threat of disciplinary proceedings.
In a recent decision in the matter of Inspector Prem Chand v. Government of NCT
of Delhi and Ors, after discussing the case law it has been held that error of
judgment or negligence simpliciter would not be misconduct.
The following acts or conduct of a government servant may amount to misconduct, in
view of Notes on CCS (Conduct) Rules, 1964 3rd Edition, 1980, published by the
Government of India, MHA, DP&AR, below rule 3-C of the 1964 Rules:
Acts and conducts which amount to misconduct: The act or conduct of a servant
may amount to misconduct(1) if the act or conduct is prejudicial or likely to be prejudicial to the interests of
the master or to the reputation of the master;
(2) if the act or conduct is inconsistent or incompatible with the due or peaceful
discharge of his duty to his master;
(3) if the act or conduct of a servant makes it unsafe for the employer to retain him
in service;
(4) if the act or conduct of the servant is so grossly immoral that all reasonable men
will say that the employee cannot be trusted;
(5) if the act or conduct of the employee is such that the master cannot rely on the
faithfulness of his employee;
(6) if the act or conduct of the employee is such as to open before him temptations
for not discharging his duties properly;
(7) if the servant is abusive or if he disturbs the peace at the place of his
employment;
(8) if he is insulting and insubordinate to such a degree as to be incompatible with
the continuance of the relation of master and servant;
(9) if the servant is habitually negligent in respect of the duties for which he is
engaged;
(10) if the neglect of the servant though isolated, tends to cause serious
consequences.

The following acts and omissions amount to misconduct.
(1) Wilful insubordination or disobedience, whether alone or in combination with
others, to any lawful and reasonable order of a superior.
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(2) Infidelity, unfaithfulness, dishonesty, untrustworthiness, theft and fraud, or
dishonesty in connection with the employers business or property.
(3) Strike, picketing, gherao Striking work or inciting others to strike work in
contravention of the provisions of any law, or rule having the force of law.
(4) Gross moral misconduct Acts subversive of discipline Riotous or disorderly
behaviour during working hours at the establishment or any act subversive of
discipline.
(5) Riotous and disorderly behaviour during and after the factory hours or in
business premises.
(6) Habitual late attendance.
(7) Negligence or neglect of work or duty amounting to misconduct Habitual
negligence or neglect of work.
(8) Habitual absence without permission and over-staying leave.
(9) Conviction by a Criminal Court.

A government employee can be departmentally tried for any of the specified
misconduct enumerated above.
Judicial illustrations of misconduct: Various judicial pronouncements have
described acts which are to be construed as misconduct.
These are illustrative but not exhaustive:
(a) Where the act or conduct of the public servant is prejudicial to the interests and
reputation of the Master
(b) Where the act or conduct of a servant is inconsistent or incompatible with the
due or peaceful discharge of his duties to the Master
(c) Where the act or the conduct of the servant makes it unsafe for the Master to
retain him in his employment
(d) Where the act or conduct of the employee is such that the Master cannot rely on
the faithfulness of the servant
(e) Where that act or conduct of the employee is so grossly immoral that all
reasonable men will say that the employee cannot be trusted
(f) Where the employee is abusive or he disturbs the peace at the place of his
employment
(g) Where the act or conduct is such as to open temptations to the employee in the
discharge of his duties
(h) Where the servant is insulting and insubordinate to such a degree as to be
incompatible with his continuation of the Master-servant relationship
(i) Where the servant is habitually negligent in the performance of duties
(j) Where the negligence though isolated tends to cause serious consequences

From the above discussion it is clear that to declare an act as misconduct it
should satisfy the conditions mentioned in the conduct rules and various
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judicial pronouncements made in different courts of law mentioned above. The
learned DA should prove my misconduct in any of the categories mentioned
above.
To constitute misconduct, my action shall have arisen from ill motive or
malafide intention. The allegations of the DA are strongly refused. I was not
involved in any unlawful behaviour nor do I have any ill motive in conducting
inspection or writing inspection report. By doing inspection I have not done
any forbidden act. In fact I was discharging my duty prescribed by rules,
codes and guidelines and directives of the higher authorities. It is also stated
that I have not transgressed any established and definite rule of action or
code of conduct in performance of my duty. And I was always consistent in
due and faithful discharge of my duty.
If the Disciplinary Authorities starts issuing charge memo on such frivolous
and baseless grounds, it will ultimately result in demoralising and
disheartening of the committed and sincere staff and officers. It may also
result in the delay in the administrative work for fear of the charge memos
and punishments. The idea behind the code of conduct and disciplinary
authority vested in the administration is only to punish the delinquent staff
and officers and not to harass the employees on frivolous and fanciful grounds
of charges. As stated in the court of law that “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 actions of Disciplinary authorities in this manner will definitely result in
killing the enthusiasm and commitment of the staff. A day will come when it
will be difficult to find an honest, committed and sincere staff in the
organisation. Borrowing the concept from the learned DA himself stating that
the onus of proof lies on the person who makes allegations, in the present
case, it becomes the responsibility of the DA to prove his allegations. The
learned DA has not ascertained the factual position before issue of charge
memo.
The DA has stated that “Shri Y.Anand, Dy.FA&CAO (G) is observed to
have committed gross irregularity” The meaning of the term gross
irregularity and what constitutes gross irregularity is discussed as under,
Meaning of "Gross" as defined in the Chambers Twentieth Century Dictionary
(Revised Ed. 1976, Allied Publishers Pvt. Ltd. Pg 574): Gross means coarse: rough:

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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

NO.CMS/SBP/Mechanised Cleaning/SBP/10-11/1, dated 26.10.10”. From this it
is understood that the learned DA has either not read the conditions of
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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? Didn’t 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

The specific charges:

Charge No.

159

a) “As per Para-25 of Special Conditions of Contract Agreement (page-19),"the
contractor should have to engage sufficient number of safai staff
i.e.eighteen in day shift, eight in first-night and eight in second-night,
excluding one supervisor in each shift". It is further provisioned that "the
contractor should arrange sufficient rest-giver/leave-reserve staff to
maintain above staff position in each shift'. Moreover, Railway's concern
was to maintain the stipulated staff-strength at all time and not
Contractor's providing LR/RG staff, which Shri Anand failed to
appreciate. Shri Anand raised a penalty of Rs.2,43,000/- against the
contractor, for not providing any LR/RG, which he calculated as
"Rs.135x3(staff)x600(days)", wherein the elements of '3 (staff) and
'600(days)' presumed by him to calculate the penalty have no basis”.

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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158
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.

b) “Shri Anand suggested to recover of Rs.6,48,000/- from the contractor

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

disprove a disputed fact.

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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157

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.

24

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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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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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

necessarily be direct evidence i.e., oral or documentary evidence or admissions made
by opposite party; it may comprise circumstantial evidence or presumptions of law or
fact."
Patna High Court in Commissioner of Income-Tax vs Nathulal Agarwala and Sons
case on 12 March, 1985, observed,
“The basic rule of evidence is that if the person on whom the onus to prove lies is
unable to discharge the same, his cause would fail. It must further be reiterated
that the presumption raised herein is only an initial presumption, which is rebuttable
by evidence. The burden of discharging an onus to prove there under would again be
like the one in ordinary civil proceedings, i.e., it can be so discharged by
preponderance of evidence. Again, it must not be insisted upon that there is any
necessary or mandatory requirement of leading evidence by one of the parties. Such
a burden can be discharged by existing material on the record in a specific case.
Section 106 of the Evidence Act: “When any fact is especially within the
knowledge of any person, the burden of proving that fact is upon him."
In E.P. Royappa v. State of Tamil Nadu and Anr, the Supreme Court has
expressed the opinion thus: “The burden of establishing mala fides is very heavy
on the person who alleges it. The allegations of mala fides are often more easily
made than proved, and the very seriousness of such allegations demands proof
of a high order of credibility”.
In another judgment reported in (2002) 4 SCC 160 (First Land Acquisition Collector
and others v. Nirodhi Prakash Gangoli and another) also it is held that burden of
establishing mala fides is very heavy on the person who alleges it and mere
allegation is not enough. It is further held that specific materials should be
placed before the Court to prove mala fides.
After a careful reading of the above judgements and definitions, it is stated
that the responsibility of showing the proof for the maintenance of the
Attendance Register and the duty distribution register lies on the contractor
and not on the inspecting official to prove that there are no registers
maintained. The contention of inspecting official can be refuted by the
contractor by producing the document/registers. The contractor has not
produced the record of evidence in support of his claim that he is providing
staff in the 2nd night shift. Even the HI/SBP also could not tell the name of
the Supervisor of the 2nd night shift.

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As per Sl.No.23 of the Special Conditions, “railway authorities will
supervise all work or its nominated representative on daily basis and
a record will be maintained for each activity completed. The
contractor will be penalized for activities not done or if the quality of
work or materials used is of sub-standard specification”.
The contention of the learned DA that onus of proof lies on the inspecting
officer to gather evidence to raise the penalty is unreasonable and not in
consistence with the law of the land. It is to be understood by the learned DA
that I have mentioned that the attendance register is maintained for 34 staff
only. But it was also said that the duty allocation register maintained by the
HI does not mention about the duty allocated to the staff in the 2nd night shift.
As was stated by the learned DA, the onus of proof does not lie on the
inspecting officer, but on the contractor who claims that he has provided the
requisite number of staff. The learned DA is creating new concepts beyond the
prudence of a normal person which have no legal backing. Onus of proof
always lies on the person who claims that a fact exists and the person who will
lose if he does not prove that the fact exists. In this case, if the contractor
failed to produce the register as a proof in support of his claim he will be
losing by not getting the payment for the work not done. It is also to be noted
by the learned DA that “no one can produce a document or record which
does not exist”. Contrarily the onus of proof to produce the document lies on
the person who says that the said document or record exists. Even by
stretching of any logic it is not understood by a normal prudent person like me
that I should produce evidence/or prove that no document exists. It is to be
learnt by the DA that I was not contesting the veracity of any
register/document which have been produced by the contractor. I
was only asking the contractor to produce any document/register in
support of his claim. If the contractor could have produced the supporting
documents I would not have proposed the recoveries. And no question of
proving or disproving would arise. Thus it is beyond the question of any
person to produce any document which does not exist originally. Hence the
charge that the onus of prove lies on the inspecting official is totally
baseless and beyond the law of the land.
The learned DA also made an allegation about my biased approach in
inspection. The learned DA should also prove that by acting in a biased
manner what pecuniary advantage has been derived by me, or my any other
supporter or any person in connection with me. Instead of making empty
allegations it becomes incumbent upon the DA to prove the allegations.
"The principles governing the "doctrine of bias" vis-a-vis judicial tribunals are wellsettled and they are (i) no man shall be a judge in his own cause; (ii) justice should
not only be done but manifestly and undoubtedly seem to be done. The two maxims
yield the result that if a member of a judicial body is "subject to a bias (whether
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financial or other) in favour of, or against, any party to a dispute, on is in such
a position that a bias must be assumed to exist, he ought not to take part in
the decision or sit on the tribunal"; and that "any direct pecuniary interest,
however small, in the subject-matter of enquiry will disqualify a judge, and any
interest, though not pecuniary, will have the same effect, if it be sufficiently
substantial to create a reasonable suspicion of bias". The said principles are
equally applicable to authorities, though they are not courts of justice or judicial
tribunals, who have to act judicially in deciding the rights of others, i. e., authorities
who are empowered to discharge quasi-judicial functions."
To constitute bias there must be reasonableness of the apprehension of bias in
the mind of the party. It is not every suspicion felt by a party which must lead
to the conclusion that the authority hearing the proceedings is biased. The
apprehension must be judged from a healthy, reasonable and average point of
view and not on mere apprehension of any whimsical person. It is the
reasonableness and the apprehension of an average honest man that must be
taken note of. Vague suspicions of whimsical, capricious and unreasonable people
should not be made the standard to regulate normal human conduct.
Bias may be of different forms, such as, judicial bias, administrative bias, political
bias. It may have different further types too, like, official bias, legal bias, legislative
bias, bias of subject-matter, pecuniary bias and personal bias.
From the understanding of the above definitions, it can be concluded that the
learned DA making a charge of bias against me is outrageous and unlawful
thereby causing me disrepute and defame in the society as well as among the
fellow colleagues in the organisation.

Charge No

c) “Shri Anand, further raised an amount of Rs.1,28,354/- as penalty, for the
Contractor's failure to provide machinery. On the contrary, the Railway, in
the Contract Agreement provisions for additional manpower in case of
failure of machines and restoration of the same within a stipulated time.
The amount raised as penalty by Shri Anand against each machine is
approximately its cost. Apart from the fact that such penalties have
nowhere been inscribed in the agreement, the penalty raised in the said
inspection note, represents Shri Anand's gross exaggerations and
misrepresentation of facts and thus, a deliberate act of harassing the
contractor”.
The "Fraud" in Black's Law Dictionary is explained as follows:
“... A false representation of a matter of fact, whether by words or by
conduct, by false or misleading allegations, or by concealment of that
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which should have been disclosed, which deceives and is intended to
deceive another so that he shall act upon it to his legal injury”. Delahanty
v. Fist Pennsylvania Bank, N.A. 318 Pa.Super, 90 464 A.2d 1243, 1251. A
generic term, embracing all multifarious means which human ingenuity can
devise, and which are restored to by one individual to get advantage over
another by false suggestions or by suppression of truth and includes all
surprise, trick, cunning, dissembling and any unfair way by which another
is cheated. Johnson v. McDonald, 170 Okl. 117, 39 P.2d 150. 'Bad faith' and
'fraud' are synonymous, and also synonyms of dishonesty, infidelity,
faithlessness, perfidy, unfairness, etc.
Elements of a cause of action for 'fraud' include false representation of a
present or past fact made by defendant, action in reliance thereupon by
plaintiff, and damage resulting to plaintiff from such misrepresentation.
Citizens Standard Life Ins. Co. vs Gilley Tex.
As distinguished from negligence, it is always positive, intentional. It
comprises all acts, omissions, and concealments involving a breach of a
legal or equitable duty and resulting, in damage to another. And includes
anything calculated to deceive, whether it be a single act or combination
of circumstances, whether the suppression of truth or the suggestion of
what is false, whether it be by direct falsehood or by innuendo, by
speech or by silence, by word of mouth, or by look or gesture.
Misrepresentation is defined under Section 18 of the Contract Act. It is an
inclusive definition. To

establish

misrepresentation,

necessary

facts

constituting or leading to misrepresentation have to be pleaded and
established. Misrepresentation is not something, which is to be inferred.
It is to be proved.
Indian Contract Act :Section 18: " Misrepresentation" defined.-"
Misrepresentation" means and includes(1) the positive assertion, in a manner not warranted by the information of
the person making it, of that which is not true, though he believes it to be
true
(2) any breach, of duty which, without an intent to deceive, gains an advantage
to the person committing it, or any one claiming under him, by misleading
another to his prejudice or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement to make a mistake as
to the substance of the thing which is the subject of the agreement.
A ―fraud is an act of deliberate deception with the design of securing
something by taking unfair advantage of another. It is a deception in

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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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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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as per the penalty conditions. In fact, the entire contract of Mechanised
cleaning has been a farce without the availability of the machinery. And
the contractor should not get any payment since the work is done
manually and not as stipulated in the Mechanised cleaning contract.
Simply if a penalty condition is not included does not absolve the
responsibility of the contractor in providing the machinery or to get the
machinery repaired when it break downs. The contactor himself has
admitted that fact. This fact can be cross examined if a vigilance team
enquires the irregularities.

It is also to be stated that while reporting the irregularities I have not
made any gross exaggerations and misrepresentation of facts. The DA
should prove that what pecuniary advantage I have derived by
misrepresenting the facts and how did I harassed the contractor. Does
the DA have any proof/evidence that I have harassed the
contractor? Did the contractor give any written/oral complaint
to the administration authorities? The DA should have enclosed the
supporting documents instead of making empty allegations. I express
my strong objection against the charge. This will eventually give
disastrous results if the DA himself being the Supreme head of
the Zonal Railways makes such allegations of harassment
against his own officers in support of a contractor.
The DA stated in his statement that, “on the contrary, the railway, in
the contract agreement provisions for additional manpower in case of
failure of machines and restoration of the same within stipulated time”.
This is totally baseless and not found anywhere in the contract. It would
have been better if the learned DA has mentioned the proviso number.
Whereas item no.(V) of Terms and Conditions of the Contract reads
thus “The contractor shall provide regular maintenance of all
mechanised systems brought for this contract and ensures
100% availability. If required, stand by machines should be
available”. No exception has been provided for the nonavailability of machinery. Item no.15 of Special Conditions only says
that “whenever it is not possible to execute the work
appropriately and adequately with the help of machines, the
contractor has to put sufficient manpower for completing the
work”. The true intent of the provision is to be understood. It did not
speak about the non availability or break down of machinery. It is only
an exception, and not that the entire work will be managed by the man
power without supplying of the machinery as provided in the contract or
providing only half of the machinery or even if provided that machinery
will not be put to use.
Moreover the letter of CMS dated 04.08.12 itself admits that the
Machinery were out of order and a notice to the Contractor was
also issued asking him to get the machinery repaired or else a
penalty of Rs.1000/- per day will be recovered as penalty. This
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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.

d) “As per Para-9 of the Special Conditions of Contract, the maximum penalty

that can be imposed on the contract is Rs.5,000/- per occasion. However,
Shri Anand based on his two days' inspection, suggested imposition of penalty
to the tune of Rs.11,37,854/-, which was not in accordance with the

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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”.

It is to be noted by the learned DA that it is specifically mentioned in the
contract conditions that the inspecting official can levy the penalty as
per his discretion and the contention of the learned DA that any and
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every inspecting official can’t impose financial penalty
contractor is unfounded and untrue and far from the truth.

on

the

As per Sl.No.9 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. Even if it is agreed for the argument sake, that
any and every inspecting official cannot levy financial penalty it is to be
understood by the learned DA that as I have told over phone to the
GM and reiterated here, that I have only proposed the penalties and
the final decision regarding the penalties have been left to the
discretion of the DRM. If the GM has closed his mind on the fact and
does not want to hear or rethink on it or take legal opinion on it, and
is maintaining the same stand I cannot help on it. Further, as an
Accounts Officer, it becomes my duty to calculate the possible penalties
keeping in view the penalty conditions.
The learned DA has further stated that “In this particular case, Shri Anand, while
working as Sr.DFM/SBP, exceeded his authority, by not only imposing a penalty of Rs
11,37,854/-, but also misused his position to withhold all bills of the contractor
towards recovery of the above amount, when the annual value of the contract was
only Rs.16 lakhs.
In this context the learned DA should understand what constitutes misuse of
position and for what pecuniary advantage I have misused my position.
"Abuse" means misuse i.e., using his position for something for which it is not
intended. The element of dishonesty is implicit in the word of abuse. In other words,
mere misuse without dishonest intention is not abuse, i.e. misusing the position
with dishonest intention would mean abuse. “using his position for something for
which it is not intended. That abuse may be by corrupt or illegal means or
otherwise than these means”.
Following the decision in M. Narayanan Nambiar v. State of Kerala (1963 (2) Cri
LJ 186), it was held by the Hon’ble Supreme Court in Major S. K. Kale v. State of
Maharashtra (1977 Cri LJ 604) that the abuse of position in order to come within
the mischief of the section must necessarily be dishonest so that it may be
proved that the accused caused deliberate loss to the department. It was
further held in this case that it is for the prosecution to prove affirmatively
that the accused, by corrupt or illegal means or by abusing his position,
obtained any pecuniary advantage for some other person.
Under Section 5(1)(d) of the Prevention of Corruption Act, if a public servant
abuses his position as a public servant and obtains for himself or for any other
person any pecuniary advantage, for showing favour, he can be punished under
Section 5(2) of the Act. Thus, it is made clear that in Section 5(1)(d) of the Act by
introduction of the words "by corrupt or illegal means or by otherwise abusing his
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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 officer’s 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 action of learned DA for his arbitrary issuance of charge memo
making serious allegations on baseless, frivolous and flimsy grounds
without giving an opportunity to me in the normal administrative
course to explain the factual position has strong vigilance angle.

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 HI’s 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 HI’s 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 employer’s 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.

The quotes of Mahatma Gandhi are hereby reproduced as I found relevant in
the present context.
“To believe in something, and not to live it, is dishonest.”

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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.

“Delusion arises from anger. The mind is bewildered by delusion.
Reasoning is destroyed when the mind is bewildered. One falls down
when reasoning is destroyed.”
- Bhagavad Gita
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