Pratyush Kumar
Second the appellant can produce documentary evidence of correspondence exchanged with General Electric lawyers in 2010 and 2011 which establishes that this complaint was not properly and satisfactorily investigated by GE and that GE lawyers attempted to cover up this forgery.
The third and most important type of material and evidence that prima facie establishes the need for investigation of this complaint is documentary evidence that establishes the attempt by the Government of India including both the Railway Ministry and the Central Vigilance Commission to close this complaint without investigation as part of the cover-up of all complaints against GE. This evidence has emerged on the record of Writ Petition Civil No. 1280/2012 in the affidavits and documents filed by the CVC and the Railway Ministry.
It is submitted that evidence of a cover-up by the Government leads to the inference that there is something to hide and the Government did not want to investigate this complaint in accordance with law because the documentary evidence in its possession is harmful to GE.
The Appellant narrated her eye-witness account in the rejoinder affidavits filed by her on July 9, 2012 and on July 23, 2012 and in particular on the correspondence between the her and General Electric exchanged during and after General Electric’s purported internal investigation. The appellant also filed a detailed affidavit running into 55 pages exclusively addressing the facts and evidence in connection with her complaint of forgery on October 11, 2012. This affidavit describes in detail the events of July 8, 9, and 10, 2010, the weekend before July 12, 2010 when the technical bid was submitted by General Electric for the Marhowra tender and when the forgery took place.
The brief details of the Appellant’s complaint with a brief narration of facts concerning the forgery
The Appellant worked for General Electric as Legal Counsel during May, June, July, August and September 2010, and was involved in the preparation of General Electric’s RFQ application dated July 12, 2010 which included the tampered document. Therefore the petitioner’s evidence is based upon her personal knowledge of the facts. General Electric had a customer certificate that Kazakhstan Railway had issued to General Electric around December 2009/ January 2010. General Electric needed to submit this document in original to the Railway Ministry along with General Electric’s technical bid for the 2010 Marhowra tender in order to satisfy the RFQ technical capacity eligibility criteria (in particular the requirement that the prior locomotive sales should have had at least two variants which the RFQ defined as gauge variations or service application variations). This customer certificate from Kazakhstan Railway was undated and therefore non-compliant with the format for customer certificates prescribed in the RFQ. This fact that the certificate was non-compliant was pointed out by the petitioner to colleagues at General Electric at the end of June 2010 (the RFQ application was due on July 12, 2010).
Unknown to the petitioner, sometime between the end of June 2010 and July 9, 2010, General Electric executives/ employees (including Pratyush Kumar, Ashfaq Nainar, Gaurav Negi. Ramesh Mathur,Ashish Malhotra and Praveena Yagnambhat) entered into a criminal conspiracy to add a false date to the undated customer certificate and to submit this altered and therefore forged document along with General Electric’s RFQ application to the Railway Ministry on July 12, 2010. The petitioner states that this conspiracy was carried out and the document that was submitted by General Electric to the Railway Ministry on July 12, 2010 as part of General Electric’s RFQ for the 2010 Marhowra tender as the customer certificate issued by Kazakhstan Railway was a tampered and forged document. The document submitted was the original copy of the Kazakhstan Railway certificate that General Electric obtained in December 2009/ January 2010. This document was altered and a false date (July 7, 2010) was added to this undated document by the hand of one of the General Electric executives involved in the criminal conspiracy. This altered and forged document was then submitted to the Indian Railway on July 12, 2010 with General Electric’s RFQ application.
As part of this conspiracy, an elaborate and detailed fraud was perpetrated by these General Electric executives (with other unknown co-conspirators) whereby a record was created in internal General Electric emails that these executives had obtained a fresh customer certificate from Kazakhstan Railway which was compliant (dated), and that a scanned copy of this new certificate would be submitted by General Electric, and that the Railway Ministry had approved the submission of a scanned copy instead of the original document.
In reality, the afore-mentioned General Electric executives altered the old Kazakhstan Railway certificate (which did not have a date) and added a false date (July 7, 2010) to that document. This tampered/ forged document was then slipped into General Electric’s RFQ application just before it was sent for binding. No one else in General Electric, except those involved in this conspiracy, would ever have known which document was eventually submitted by General Electric. Also, the Railway Ministry would have accepted the altered / forged document as an original certificate and would never have raised any questions. It is also possible that the General Electric executives involved in the conspiracy intended to claim that the new original document from Kazakhstan Railways (which had been purportedly couriered) had been delivered sometime during the weekend of 10 and 11 July 2010 and that this document had been substituted in place of the scanned copy. As a result, even the internal General Electric record would have shown that General Electric had submitted an original copy of a compliant certificate.
This conspiracy was foiled as a result of the petitioner recording on email on the morning of July 10, 2010 that the General Electric team consider including both documents in its RFQ application, i.e., the alleged scanned copy of the fresh certificate and the undated original document. As the undated original document had already been tampered, it was no longer possible for the General Electric executives (involved in the forgery) to include it. The plan was also foiled because the petitioner looked through the bound RFQ application on July 10, 2010 and saw that this compilation included an “original certificate” from Kazakhstan Railway that bore the date July 7, 2010. As a result of the petitioner having seen evidence of the forgery, she was drugged during the weekend of July 10 and 11, 2010 by/ at the behest of these General Electric executives. She was also bullied, harassed and an attempt made to get her to participate in an unlawful act (as described in the affidavit dated October 11, 2012 filed on the forgery issue) which could then be used to blackmail the petitioner. After July 12, 2010, the petitioner was again drugged/ poisoned while these General Electric executives participated in a further conspiracy to eliminate the petitioner and to remove her by having her contract with General Electric terminated. The petitioner was finally able to report this forgery only on October 1, 2010 to the General Counsel for General Electric Company after her contract with General Electric had been terminated in violation of whistleblower non-retaliation laws and policies. Since then, the petitioner has been subjected to further poisoning and drugging and her complaint of this forgery has been covered up by General Electric. The petitioner’s life remains in grave danger.
General Electric through Mr Alexander Dimitrief’s letter dated February 3, 2011, claims that documentary evidence disproves the petitioner’s complaint about the forgery. This is incorrect. The documentary evidence discussed in Alexander Dimitrief’s letter is irrelevant. He states: “We have compared the printout of the certificate from the July 7 e-mail with GETI’s copy of the Request for Qualification (“RFQ”) submitted to Indian Railways and they are identical”.
The petitioner submits that this does not establish that the certificate was not forged. Why would General Electric executives retain evidence of the forgery and of the tampered document on General Electric files? A close reading of Alexander Dimitrief’s letter will establish that it does not provide any evidence to establish that the petitioner’s complaint of forgery is without basis. The letter misrepresents and ignores the petitioner’s written evidence and attempts to falsely suggest that the petitioner withdrew her complaint, whereas the petitioner did not.
The document that General Electric eventually submitted to the Railway Ministry on July 12, 2010 was not a scanned copy of the fresh customer certificate dated July 7, 2010. General Electric executives submitted the original undated Kazakhstan Railway customer certificate after adding a false date to it. This is the document the petitioner saw in the bound RFQ application on July 10 and 11, 2010. The evidence that the petitioner has shared in writing clearly shows the following:
i. The document the petitioner saw in the RFQ compilation on the evening of 9 July 2010 contained a black and white copy of the Kazakhstan certificate. This was the final set that was supposed to have been sent for binding.
ii. The bound set that the petitioner saw on 10 July 2010 contained an entirely different document (Kazakhstan certificate) that was in colour and looked like an original leading the petitioner to ask her colleagues at General Electric: “are you guys playing games with me?”
iii. Ashish Malhotra (from General Electric) lied to the petitioner and told her that the coloured document had been present in the set the petitioner looked through on 9 July 2010. This is incorrect. The document the petitioner saw on 9 July 2010 was a black and white document that on the face of it looked like a copy.
The only relevant evidence of the forgery is the document on the files of the Railway Ministry, i.e., the document General Electric actually submitted. The petitioner submits that a perusal of this document by this court will establish that the document General Electric submitted was the original undated Kazakhstan Railway customer certificate with a false date. Any reasonable person wanting to investigate this forgery would look to the relevant documentary evidence available with the Government. Why does General Electric not want that evidence examined? The petitioner has described the events of 10 and 11 July 2010 in great detail in writing. There is hard evidence of the events of 10 and 11 July 1010 that have been described by the petitioner. In addition, the petitioner has also detailed the conspiracy to cover up this forgery that was put into effect afterwards.
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Jeffrey Eglash
Ms. Sapra made the following complaint to General Electric Company on 1.10.2010
---------- Forwarded message ----------
From: Seema Sapra <seema.sapra@googlemail.com>
Date: Fri, Oct 1, 2010 at 2:26 PM
Subject: more information about week before D loco RFQ submission
To: "Eglash, Jeffrey C (GE, Corporate)" <jeffrey.eglash@ge.com>
Cc: "Dimitrief, Alexander (GE, Corporate)" <alexander.dimitrief@ge.com>, "Plimpton, Tara (GE Infra, Transportation, US)" <tara.plimpton@ge.com>, deepak.adlakha@ge.com, james.winget@ge.com, "Denniston, Brackett (GE, Corporate)" <brackett.denniston@ge.com>
Jeff,
I have been spending a lot of time going over events from my time at GE. There is an important issue about which I now have doubts in my mind.
In my review of the Diesel Loco RFQ (due on 12 July 2010), I found that some customer certs were deficient. I also raised and communicated concerns that the certs might not adequately meet the technical capacity pre-qualification criteria in the RFQ. All this is on record.
Week of 5th July 2010
In the last week before the submission date, during a meeting where Vinod Sharma ( an external consultant) was also present, Prat and Ash took the decision to submit scanned copies of a couple of certs as the originals were not available. This according to them was the only available option at that time. I pointed out then (as I had before and did again subsequently), that the RFQ required originals and there was a risk of disqualification without originals. Mr Sharma agreed with me on the need for originals and said efforts must be made to get originals but if these did not arrive in time then scanned copies were the best option. Later that evening, Prat and Ash assured me that they would record their decision as a business decision.
My advice to Ashish all through the last week was to delay binding and wait for the originals. I emailed and spoke to Tara and Jamie about this issue. And I also spoke to Deepak on Friday evening. The papers were sent for binding on Friday late evening. Earlier in the evening Ashish had given me the original set to review and it had two scanned certs, the Vale and the Kazakhstan cert. Both of these were black and white copies.
Weekend (10 & 11 July 2010)
On Saturday morning I sent an email on this issue because I was concerned and because Deepak had given some advice. This email is on record. Deepak called me on Saturday and told me to now leave the issue/ decision to Prat and Ash.
I went into office on Saturday later and saw the bound version. I was surprised to find the Kazakhstan cert (one of the missing originals) in color. It looked like the original. I asked Ashish and Ramesh (I do not remember if Praveena was in the room) “Are you guys playing games with me?” Basically I asked them have you got the original because you told me it had not arrived. Ashish told me this was a color printout. I said I got confused. It looked like an original. I asked Ashish where did you get this. He said they had a color scan and they decided to take a color printout.
Prat came in later and Ashish told him Seema had gotten confused about the color printout.
Even though Ashish told me this was a color print-out, I now have doubts about this. Prat and Ash were very angry about my Saturday email. There was a lot of tension because of my email.
On Sunday, Ash tried to trap me into getting a non-compliant Power of Attorney (POA) as he raised a big hue and cry about a small mistake in the POA. I refused to get the non-compliant POA and insisted that use the document we had. [This was confirmed by three lawyers, Amit Kumar (Amarchand), Deepak Adlakha and I. All three were of the view that there was no defect in the POA we had.] When I said the existing POA was OK, Ash got upset and said I had been going on for weeks about the customer certs and now I was not concerned about the POA.
On Sunday, Praveena claimed to have found a notary on the internet who could notarise a new POA. Ash and Praveena wanted to send an office assistant to this notary. I said I would go myself as I wanted to make sure it was all genuine. I found the notary set-up a con and refused to get a new POA from there. Despite my telling Ash (I called Ash from the notary’s office) my concerns about this notary, he suggested I get the document and then we could decide. I refused and said the existing POA could be used. Later I found a genuine stamp paper vendor who issued stamp paper on Sunday. I also located a genuine notary who could notarise the POA. When I asked Ash to send his car for the stamp paper, Prat stepped in, called up Amit Kumar (Amarchand) and decided we did not need a new POA. I think there was an attempt to harass me over a minor defect in the POA and to trap me into getting a non-compliant POA. Did Praveena really find the con notary on the internet on Sunday? Was this a pre-planned conspiracy? Was this intended to deflect my attention from the customer cert issue?
Prat bullied and humiliated me in front of everyone on Sunday over other issues (i.e., me questioning Ramesh sending out E Loco RFP queries to the Government without review) leading me to tell him I would resign. Deepak called me about this on Sunday evening.
I have given these and subsequent events a lot of thought in the past few weeks.
I am concerned about the Kazakhstan cert that was submitted. Was it a color print-out of a color scan like I was told? The earlier scan I had seen was in black and white. Was this a doctored/ manipulated document?
It is important that GE ascertain whether the scan was in color or not? Where did the color printout come from?
Were Prat and Ash intending to pass off the Kazakhstan cert submitted as original? Was this why my email of Saturday made them so angry?
If the color copy filed is not a genuine print-out of a genuine color scanned copy then the document could be seen as a forgery. GE must inform the Government about any such forgery.
I have another concern about this weekend.
My email stopped working after my Saturday morning email. I tried to resolve the problem on the phone with Varun (IT) on Saturday but could not. He could not explain why my connection to the GE servers was down. There was something wrong about my IP address. My email started working again on Monday morning on its own. Did someone deliberately interfere with my network connectivity? Why was my connection down on Saturday and Sunday.
Incidentally, all through this weekend, I had severe lower back pain and was on pain-killers.
All of this also happened soon after I had spoken to Radhika about Prat and Praveena and after I suspect Radhika warned Praveena.
Some other thoughts:
Prat, Ash, Ramesh and Praveena’s entire interaction with me as legal counsel for GE was in bad faith.
While I was still at AIFACS I noticed how anxious Prat, Ash, Ramesh and Praveena became when I started talking about raising concerns.
I can prove everything that happened on a day-to-day basis. There are so many people who can bear me out on facts. But no one in GE was interested in listening to what happened. GE’s response was to push me out, move me to Gurgaon and then to ask me to leave. The paramount concern of people I tried to speak to was that nothing should come in the way of the D loco deal. And since Prat was not working well with me, I should be removed from the role.
Thanks,
Seema
--
Seema Sapra
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Ms. Seema Sapra made the following complaint to the Railway Ministry on 23.12.2010.
---------- Forwarded message ----------
From: Seema Sapra <seema.sapra@googlemail.com>
Date: Thu, Dec 23, 2010 at 11:34 AM
Subject: GE's RFQ for Marhowra Project
To: dmew@rb.railnet.gov.in
Cc: mm@rb.railnet.gov.in, crb@rb.railnet.gov.in, secyrb@rb.railnet.gov.in, john.flannery@ge.com, prat.kumar@ge.com, "Denniston, Brackett (GE, Corporate)" <brackett.denniston@ge.com>
Attn:
Shri Santosh Sinha
Director (Mech Engg)/ Works
Room No. 312A, Rail Bhawan
Ministry of Railways, Rafi Marg
New Delhi 110001
Fax: 011 23386693
Ref: RFQ for Diesel Locomotive factory at Marhowra submitted by GE Global Sourcing India Pvt. Ltd
Dear Shri Santosh Sinha,
I was employed as Legal Counsel with GE Transportation in India at their Rafi Marg office between April 2010 and September 2010. I am writing in connection with the RFQ Application submitted by GE for the Marhowra project on 12 July 2010.
This application contained a customer certificate from Kazakhstan railways. I would like to bring to your notice that the Kazakhstan certificate submitted is not an original copy. GE received the original of this certificate a few days after the RFQ was submitted on 12 July. I have reasons to suspect that the copy filed was faked to look like an original. I believe that GE might have had a scanned copy of the original sent on email. However, I suspect that this scanned copy was modified to look like an original and therefore a faked certificate was submitted along with the RFQ.
I request you to investigate this matter thoroughly. I had communicated my concern to GE on 1 October 2010. Since then, GE has not confirmed to me that the certificate filed was not forged. I have shared the reasons for my concern with GE senior management and attorneys in their headquarters in the United States.
As a lawyer who was involved in the preparation of the RFQ application and as a citizen of India, I have a legal right to know if the certificate was forged. If it was forged, then I believe criminal offences have been committed. Further GE is liable to be disqualified from the tender process. I request the Railway Authorities to ascertain the truth from GE and kindly let me know. I am copying GE on this request.
Kind Regards,
Seema Sapra
Advocate
G-4 First Floor, Jangpura Extension,
New Delhi 110014
Ph. 99588 69955
Copy to:
John Flannery
GE India Industrial Private Limited
Building 7A, 5th Floor
Sector 25A, DLF Cyber City
Phase III, Gurgaon
Haryana 122 022
|
Ms. Seema Sapra made the following complaint to Indian Government authorities on 11.1.2011
---------- Forwarded message ----------
From: Seema Sapra <seema.sapra@googlemail.com>
Date: Tue, Jan 11, 2011 at 1:18 PM
Subject: GE's RFQ for Marhowra Project
To: dch@nic.in, g.haldea@nic.in
Cc: r.mital@nic.in, sonjoy.saha@nic.in, dmew@rb.railnet.gov.in, 'secyrb@rb.railnet.gov.in', 'john.flannery@ge.com', 'prat.kumar@ge.com', "Denniston, Brackett (GE, Corporate)" <brackett.denniston@ge.com>, jeffrey.immelt@ge.com, lorenzo.simonelli@ge.com, "Plimpton, Tara (GE Infra, Transportation, US)" <tara.plimpton@ge.com>, "Eglash, Jeffrey C (GE, Corporate)" <jeffrey.eglash@ge.com>, "Dimitrief, Alexander (GE, Corporate)" <alexander.dimitrief@ge.com>, crb@rb.railnet.gov.in, ml@rb.railnet.gov.in, me@rb.railnet.gov.in, mm@rb.railnet.gov.in, secyrb@rb.railnet.gov.in, msra@rb.railnet.gov.in, cvc@nic.in, vigilance@nic.in, r.sri_kumar@nic.in, jmg.vc@nic.in
Dr. Ahluwali and Mr. Haldea,
I am a lawyer and have brought a possible forgery to the notice of the Railway Board in respect of the RFQ submitted by GE for the diesel locomotive factory (Marhowra) project. My email to the Railway Board is set out below.
I request that this matter be looked into. I request that the Government obtain a clarification from GE about this issue.
Regards,
Seema Sapra
From: Seema Sapra [mailto:seema.sapra@gmail.com]
Sent: Thursday, December 23, 2010 11:35 AM
To: 'dmew@rb.railnet.gov.in'
Cc: 'mm@rb.railnet.gov.in'; 'crb@rb.railnet.gov.in'; 'secyrb@rb.railnet.gov.in'; 'john.flannery@ge.com'; 'prat.kumar@ge.com'; 'Denniston, Brackett (GE, Corporate)'
Subject: GE's RFQ for Marhowra Project
Attn:
Shri Santosh Sinha
Director (Mech Engg)/ Works
Room No. 312A, Rail Bhawan
Ministry of Railways, Rafi Marg
New Delhi 110001
Fax: 011 23386693
Ref: RFQ for Diesel Locomotive factory at Marhowra submitted by GE Global Sourcing India Pvt. Ltd
Dear Shri Santosh Sinha,
I was employed as Legal Counsel with GE Transportation in India at their Rafi Marg office between April 2010 and September 2010. I am writing in connection with the RFQ Application submitted by GE for the Marhowra project on 12 July 2010.
This application contained a customer certificate from Kazakhstan railways. I would like to bring to your notice that the Kazakhstan certificate submitted is not an original copy. GE received the original of this certificate a few days after the RFQ was submitted on 12 July. I have reasons to suspect that the copy filed was faked to look like an original. I believe that GE might have had a scanned copy of the original sent on email. However, I suspect that this scanned copy was modified to look like an original and therefore a faked certificate was submitted along with the RFQ.
I request you to investigate this matter thoroughly. I had communicated my concern to GE on 1 October 2010. Since then, GE has not confirmed to me that the certificate filed was not forged. I have shared the reasons for my concern with GE senior management and attorneys in their headquarters in the United States.
As a lawyer who was involved in the preparation of the RFQ application and as a citizen of India, I have a legal right to know if the certificate was forged. If it was forged, then I believe criminal offences have been committed. Further GE is liable to be disqualified from the tender process. I request the Railway Authorities to ascertain the truth from GE and kindly let me know. I am copying GE on this request.
Kind Regards,
Seema Sapra
Advocate
G-4 First Floor, Jangpura Extension,
New Delhi 110014
Ph. 99588 69955
Copy to:
John Flannery
GE India Industrial Private Limited
Building 7A, 5th Floor
Sector 25A, DLF Cyber City
Phase III, Gurgaon
Haryana 122 022
|
Ms Seema Sapra received the following communication from the Central Vigilance Commission dated 30.5.2011.
CENTRAL VIGILANCE COMMISSION
Telegraphic Address:
“SATTARKA: New Delhi
E-Mail Address
cenvigil@nic.in
Website
www.cvc.nic.in
EPABX
24651001 – 07
Fax: 24616286
Satarka Bhawan, G.P.O. Complex,
Block A, INA, New Delhi 110023
No. 1117/RLY/16/130260
Dated 30.05.2011
To,
Smt. Seema Sapra,
Advocate,
G-4 First Floor
Jangpura Extesion
New Delhi – 110014
Sub: Complaint against Railway official
Ref: Your e-mail letter dated 11.01.2011
Sir,
Your e-mail complaint has been registered as complaint no. 107/11/1 and has been forwarded to Shri A.K. Maitra, Advisor (Vig), Railway Board, Rail Bhawan, New Delhi for investigation and submission of a report within three months from the date of receipt of Commission’s reference.
2. The Commission would be obtaining a report from the department in due course. If you wish to see the status of your e-mail complaint, you may log on to the Commission’s website http://www/cvc/nic/in by entering the complaint number given above, in the field complaint status. The current status of your complaint would be displayed on the screen.
Yours faithfully
(SK Gwaliya)
Section Officer
|
Notice was issued to the CVC and the Railway Ministry (among others) in Writ Petition Civil No. 1280/2012 on 7.3.2012.
The following statement was made in the affidavit dated 2.7.2012 filed for the Railway Ministry.
That the Central Vigilance Commission vide its letter No. 1117/RLY/16/124624 dated 11.04.2011 had forwarded to Railway Board a copy of email complaint dated 11.01.2011 received in the Commission from Ms. Seema Sapra, Advocate, New Delhi in which the complainant alleged that fake Customer Certificate was submitted by M/s. GE Global Sourcing India Pvt/ Ltd. in connection with Request for Qualification (RFQ) for setting up Diesel Locomotive Factory at Marhowra, District – Saran, Bihar. On receipt of the complaint, the matter was got thoroughly investigated and the investigation has revealed that Clause 3.2 related to ‘Technical Capacity’, inter-alia, mentioned that the applicant firm should have manufactured and supplied at least 1000 Mainline Diesel Electric Locomotives over the period of last ten years. Scrutiny of the tender file revealed that as per the Customers’ Certificate attached at page 63 to 113 of the RFQ submitted by M/s. GE Global Sourcing India Pvt. Ltd., the company had designed, manufactured and supplied total 2326 mainline Diesel Electric Locomotives over a period of last ten years. Thus, it is noticed that even if the Customer Certificate issued by Kazakhstan Railway for 10. No. of locomotives supplied by M/s. GE Global Sourcing India Pvt. Ltd., is discarded, the firm was fulfilling the Technical Capacity” criteria, as the requirement as per clause 3.2 of the RFQ is only 1000 locomotives over the period of last ten years. Thus, investigation has found that the firm M/s. GE Global Sourcing India Pvt. Ltd. has not derived any advantage by submitting the scanned copy. Therefore, no substance was found in the allegation. The report of investigation was sent to the Central Vigilance Commission and the Central Vigilance Commission after perusal of the Investigation Report and the comments of the administrative authorities thereon has advised closure of the case vide CVC’s ID No. 1117/RLY/16/145435 dated 19.09.2011 (Annexure-R-1).
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CVC document produced along with Railway Ministry affidavit dated 2.7.2012
CENTRAL VIGILANCE COMMISSION
The Commission has perused the investigation report and the comments of the administrative authorities thereon. In agreement with the RB(Vigilance), the Commission would advise closure of the complaint case.
2. Railway Board’s ID No./2011/VC/RB/10-CVC dated 12.02.2011 refers and its file is sent herewith.
(R.C. Arora)
Director
Railway Board (Shri AK Maitra, Advisor(Vig.) New Delhi.
CVC’s ID No. 1117/RLY/16/145435 dated 19.09.2011
|
Note that the Railway Ministry affidavit dated 2.7.2012 establishes the following:
The complaint of forgery was not investigated.
The Railway Ministry misled the Delhi High Court that General Electric did not need the Kazakhstan Railway certificate to qualify.
The only finding of the “investigation” was that according to the Railway Ministry, General Electric did not benefit from submitting the Kazakhstan Certificate and that even if that certificate is discarded, General Electric fulfilled the technical capacity criteria.
It was on this basis that the Railway Ministry affidavit dated 2.7.2013 stated the following:
“Thus, investigation has found that the firm M/s. GE Global Sourcing India Pvt. Ltd. has not derived any advantage by submitting the scanned copy. Therefore, no substance was found in the allegation.”
Two-point response to this affidavit of the Railway Ministry
i. General Electric did need the Kazakhstan certificate to qualify, therefore this certificate could not be discarded. General Electric did therefore benefit from filing this certificate.
iii. The complaint of forgery has not been investigated.
In her response, the Petitioner also pointed out that the only document produced with the Railway Ministry affidavit dated 2.7.2012 was the CVC document dated 19.9.2011 which did not shed any light on the matter. The Petitioner had therefore submitted in her subsequent applications and affidavits that the Railway Ministry and the CVC be directed to produce the actual investigation report.
Another affidavit dated 1.14.2013 was filed for the Railway Ministry. In this affidavit, the following statement was made in paragraph 172:
“A true copy of the advice received from the Central Vigilance Commission and a true copy of the brief on the investigation conducted by the Railway Board (Vigilance) on the complaint dated 11.01.2011 made by the Petitioner to the CVC are annexed herewith and marked as Annexure R-10 (Colly).”
Attached to this affidavit as Annexure R-10 (Colly) were three documents. These are reproduced below.
URGENT
COURT CASE
F.No.2011/VC/RB/10-CVC
Sub: PIL filed in the Hon’ble High Court of Delhi at New Delhi titled Seema Sapra Vs Union of India & others. W.P.(C)No.1280/2012 (PIL).
Ref: EDME(Project)’s note dated 22.06.2012
A brief on the investigation conducted by Railway board Vigilance on the complaint dated 11.01.2011 made by Ms. Seema Sapra, Advocate to CVC is enclosed as desired.
(R.V.Nair)
JDV(Int.)
25.06.2012
Adv.(Vig.)
EDME(Proj.)
|
BRIEF ON THE INVESTIGATION CONDUCTED BY RAILWAY BOARD VIGILANCE ON THE COMPLAINT MADE TO CVC BY MS. SEEMA SAPRA, ADVOCATE.
Central Vigilance Commission vide its letter No.1117/RLY/15/124624 dated 11.04.2011 had forwarded to Railway Board a copy of e-mail complaint dated 11.01.2011 received in the Commission from Ms. Seema Sapra, advocate, New Delhi in which the complainant alleged that fake Customer Certificate was submitted by M/s. GE Global Sourcing India Pvt. Ltd. in connection with Request for Qualification (RFQ) for setting up Diesel Locomotive Factory at Marhowra - District Saran, Bihar.
Investigation has revealed that Clause 3.2 related to ‘Technical Capacity”, inter alia mentioned that the applicant firm should have manufactured and supplied at least 1000 Mainline Diesel Electric Locomotives over the period of last ten years.
Scrutiny of the tender file revealed that as per the Customers’ Certificate attached at page 63 to 113 of the RFQ, M/s GE Global Sourcing India Pvt. Ltd. had designed, manufactured and supplied total 2326 mainline Diesel Electric Locomotives over a period of last ten years. Thus, it is noticed that even if the Customer Certificate issued by Kazakhstan Railway for 10. No. of locomotives supplied by M/s. GE Global Sourcing India Pvt. Ltd. is discarded, the firm was fulfilling the “technical Capacity” criteria, as the requirement as per clause 3.2 of the RFQ is only 1000 locomotives over the period of last ten years. Thus, investigation has found that the firm M/S. GE Global Sourcing India Pvt. Ltd. has not derived any advantage by submitting the scanned copy. Therefore, no substance was found in the allegation.
The Central Vigilance Commission after perusal of the Investigation Report and the comments of the administrative authorities thereon has advised closure of the case vide CVC/s ID No. 1117/RLY/16/145435 dated 19.09.2011.
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The third document was the CVC communication dated 19.9.2011 which has already been reproduced above.
Now this CVC document dated 19.9.2011 refers to four documents :-
(i) an investigation report
(ii) comments of the administrative authorities on the investigation report
(iii) a communication from the RB(Vigilance)
(iv) Communication carrying Railway Board’s ID No./2011/VC/RB/10-CVC and dated 12.02.2011
None of these four documents mentioned in the CVC communication have been produced along with the Railway Ministry affidavit dated 14.1. 2013.
Instead there is an unsigned note which verbatim repeats what was stated in the first Railway Ministry affidavit of 2.7.2012. This unsigned note is titled “BRIEF ON THE INVESTIGATION CONDUCTED BY RAILWAY BOARD VIGILANCE ON THE COMPLAINT MADE TO CVC BY MS. SEEMA SAPRA, ADVOCATE”. This note refers to a Central Vigilance Commission letter No.1117/RLY/15/124624 dated 11.04.2011 which “had forwarded to Railway Board a copy of e-mail complaint dated 11.01.2011 received in the Commission from Ms. Seema Sapra, advocate,”
Note the discrepancy here. The CVC note of 19.9.2011 which is relied upon to support the closure of the case refers to a Railway Board letter with ID No./2011/VC/RB/10-CVC and dated 12.02.2011.
How did the Railway Board write to the CVC about this complaint (and recommend closure on 12.02.2011) when the unsigned note titled “BRIEF ON THE INVESTIGATION CONDUCTED BY RAILWAY BOARD VIGILANCE ON THE COMPLAINT MADE TO CVC BY MS. SEEMA SAPRA, ADVOCATE” claims that it received the complaint from the CVC on 11.04.2011?
The other document produced with the Railway Ministry affidavit dated 14.1.2013 is an internal Railway Ministry communication dated 25.06.2012 enclosing the unsigned note and referring to it as the “EDME(Project)’s note dated 22.06.2012”.
So the Railway Ministry has not produced any report of investigation carried out by its vigilance department or by the CVC.
All it has produced is an unsigned note referred to as the EDME(Project)’s note dated 22.06.2012. EDME refers to Executive Director Mechanical Engineering. Even the name of the officer who has allegedly written this note is not provided.
So there is no investigation report. Instead the Railway Ministry affidavit dated 14.1.2013 attempts to misrepresent and pass off an anonymous unsigned note referred to as the EDME(Project)’s note dated 22.06.2012 as the investigation report of the vigilance branch. Note that the Executive Director Mechanical Engineering is not part of the vigilance department.
So it is clear that there has been no investigation by the CVC or Railway Vigilance on the complaint of forgery. Forged and fraudulent documents suggesting this have been filed with the Railway Ministry affidavits dated 2.7.2012 and 14.1.2013.
False and perjurious statements have been made in these affidavits lying to the Court that the forgery complaint was investigated and that the CVC approved of the investigation and recommended closure of the case.
These false statements include the following false statement made in para 196 of the affidavit dated 14.1.2013:
“it is respectfully submitted that the summary of the investigation report by the Vigilance Directorate, as endorsed by the CVC, has been placed before the Hon’ble Court. In terms of the recommendation, the case has been closed.”
The complaint of forgery was not investigated either by the Railway Ministry Vigilance Department or by the Central Vigilance Commission. Instead the attempt has been to cover up this matter and to avoid an investigation into the complaint of forgery.
General Electric did need the Kazakhstan Railways certificate qualify.
Clause 3.2.1 of the 2010 Marhowra RFQ
“Subject to the provisions of Clause 2.2, the Applicant shall:
a) over the period of last ten (10) years, have manufactured and supplied at least 1000 Mainline Diesel Electric Locomotives and:
i. such Locomotives should comprise at least 2 Variants; a Variant for the purpose of this RFQ Document shall mean a Locomotive with different gauge or with different service application;
ii. the supply of such Locomotives should have been to three (3) or more countries;
iii. 200 or more of such Diesel Electric Locomotives should be of 4000 HP (or higher) with AC-AC 3-phase and IGBT technology; iv. 25 or more of such Diesel Electric Locomotives should be of 6000 HP (or higher)”
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Thus the Railway Ministry affidavit dated 2,7.2012 falsely stated that General Electric only needed evidence of manufacture and supply of 1000 mainline Diesel Electric locomotives. As is clear from Clause 3.2.1 (reproduced above), a bidder also needed to provide customer certificates to show that it met the other conditions/ criteria prescribed in Clause 3.2.1. The 1000 locomotives relied upon by a bidder needed to have at least two variants. These locomotives should have been supplied to at least three countries. 200 of these locomotives should have been of at least 4000 HP with AC-AC 3-phase and IGBT technology. And at least 25 of these locomotives should have been of at least 6000 HP.
While General Electric did not need the Kazakhstan Railways customer certificate to certify the requirement for prior manufacture and supply of 1000 locomotives, it did need this certificate to meet the requirement that these locomotives should comprise of two variants (i.e., locomotives with either gauge variations or service application variations). General Electric did not meet the requirement for two variants prescribed by Clause 3.2.1 without the Kazakhstan Railways customer certificate which covered a gauge variant. This was also the internal understanding in General Electric and is recorded on internal General Electric emails.
Further the submission of a forged certificate amounted to a material misrepresentation under clause 2.7.3 of the 2010 Marhowra RFQ and a fraudulent practice under clause 4.1.3 (b) of the 2010 Marhowra RFQ. The submission of a forged/ tampered customer certificate therefore rendered General Electric liable for mandatory disqualification and blacklisting for a period of two years (Clause 4.1.1 and Clause 4.1.2 of the RFQ). It also amounts to the criminal offence of forgery under both Indian and US law.
The Division Bench of Judge Valmiki Mehta and Judge P.S. Teji who wrongly dismissed Writ Petition Civil No. 1280/2012 did not permit the petitioner to argue the matter at all. The Petitioner was unable to even mention the issue of the forgery complaint during the four hearings on 19, 20, 22 January and 3 February 2015 before this Bench, leave alone argue.
Yet without even hearing the petitioner on this issue or indeed hearing anyone else, or examining the court record, or considering the affidavits filed by the petitioner, the judgment dated 2.3.2015 issued by Judge Valmiki Mehta and Judge P.S. Teji includes the following statement:
In fact, the petitioner had filed a complaint with CVC with regard to some of her allegations made in this petition, and the records of this court show that after replying to the petitioner that the complaint has been looked into, CVC ultimately had advised closure of the case and this is so stated in the counter- affidavit of respondents no. 2 and 4/Railways dated 2.7.2012 and the relevant para of the counter-affidavit is para 3 which reads as under:-
"3. That the Central Vigilance Commission vide its letter No. 1117/RLY/16/124624 dated 11.04.2011 had forwarded to Railway Board a copy of e-mail complaint dated 11.01.2011 received in the Commission from Ms. Seema Sapra, Advocate, New Delhi in which the complainant alleged that fake Customer Certificate was submitted by M/s. GE Global Sourcing India Pvt. Ltd. in connection with Request for Qualification (RFQ) for setting up Diesel Locomotive Factory at Marhowra, District - Saran, Bihar. On receipt of the complaint, the matter was got thoroughly investigated and the investigation has revealed that Clause 3.2 related to "Technical Capacity', inter-alia, mentioned that the applicant firm should have manufactured and supplied at least 1000 Mainline Diesel Electric Locomotives over the period of last ten years. Scrutiny of the tender file revealed that as per the Customers' Certificate attached at page 63 to 113 of the RFQ submitted by M/s. GE Global Sourcing India Pvt. Ltd., the company had designed, manufactured and supplied total 2326 mainline Diesel Electric Locomotives over a period of last ten years. Thus, it is noticed that even if the Customer Certificate issued by Kazakhstan Railway for 10 No. of locomotives supplied by M/s. GE Global Sourcing India Pvt. Ltd. is discarded, the firm was fulfilling the 'Technical Capacity' criteria, as the requirement as per clause 3.2 of the RFQ is only 1000 locomotives over the period of last ten years. Thus, investigation has found that the firm M/s. Global Sourcing India Pvt. Ltd. has not derived any advantage by submitting the scanned copy. Therefore, no substance was found in the allegation. The report of investigation was sent to the Central Vigilance Commission and the Central Vigilance Commission after perusal of the Investigation Report and the comments of the administrative authorities thereon has advised closure of the case vide CVC's ID No. 117/RLY/16/145435 dated 19.09.20111 (Annesure R-1)." (underling added)
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This is the only reference in the judgment to the court record and it refers to and relies upon a patently false statement made in the Railway Ministry affidavit dated 2.7.2012. This statement has been included in the judgment without hearing the petitioner, without examining the court record, and without considering the affidavits of the petitioner and her submissions therein.
The result is that this judgment which expressly refuses to look at the court record and states this at more than one place, picks up a portion of a Railway Affidavit and inserts it into the judgment as if this were a finding of the Court, without hearing the parties.
As elaborated hereinabove, this statement in the Railway Ministry affidavit was not only false but perjurious, intended to mislead the Court, and based upon fabricated documents.
There has been no CVC investigation into the complaint of forgery.
Once again the judgment issued by Judge Valmiki Mehta and Judge P.S. Tegi is deeply flawed and results in a cover-up of the corruption complaints against General Electric including this particular complaint of forgery.
