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2000 DIGILAW 1067 (PNJ)

K. P. Sharma v. State Of Haryana

2000-09-06

AMAR DUTT

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Judgment Amar Dutt, J. 1. In case against the petitioner was registered in Police Station, Matlauda on a written complaint being forwarded by the Deputy General Manager, (HR) on 19.6.2000, as a result of the internal investigation of the contract file carried out by the Indian Oil Corporation (in short the Corporation) on 28.9.1999 regrading the pre-commissioning activity of the Hydro Crackers Unit and Hydrogen Generation Unit between January, 1999 and March, 1999. During this period, one M/S. Gayatari Engineering Company of Vadodara had been awarded and permitted to perform the work at rates, which were found by the Corporation to be exorbitant. According to the complainant, the contract had been awarded ignoring the rates fixed for similar works at Panipat Refinery on the basis of which the value of work, should not have exceeded Rs. 2,33,902/-. Initially, the work was estimated at Rs. 44,708/- and ultimately the work was awarded at approximately Rs. 60,00,000/- to M/S Gayatari Engineering Company out of which 10% is stated to have been passed on to the petitioner. In this way, according to the Deputy General Manager a loss of about Rs. 38.33 lacs had been caused to the Corporation. The relevant portion of the complaint is as under:- "(i) In the first week of March, 1999 he caused and manipulated a proposal (which was back dated in January 7,1999, copy of which is enclosed) to have the work estimated at Rs. 44.78 lacs (Rs. forty four lacs and seventy eight thousand only) on the basis of idle manpower rates of a single contractor who had quoted very high idle manpower rates, (ii) Between the 3rd and 4th week of March, 1999 he caused a fresh estimate of Rs. 60.34 lacs (Rs. Sixty lacs thirty four thousand only), copy of which is enclosed, for the work based on a forged copy of an order purported to have been placed on 2.4.96 by M/S. Finolex on M/S. Gayatari Engineering Co. for a similar work. Copy of the forged fax is also enclosed, (iii) He also caused the first page of the estimate of Rs. 44.78 lacs be then replace by the fresh estimate of Rs. . for a similar work. Copy of the forged fax is also enclosed, (iii) He also caused the first page of the estimate of Rs. 44.78 lacs be then replace by the fresh estimate of Rs. . 60.34 lacs while retaining the second page of the original estimate, (iv) He placed on the record of Panipat Refinery for the contract the forged faxed copy of the alleged order dated 2.4.96 of M/S. Finolex on M/S. Gayatari Engineering Co. with a view to justify the estimate of Rs. 60.34 lacs. When contacted M/S. Finolex has denied having issued any order as alleged on M/S. Gayatari Engineering Co. Copy of the letter dated 29.6.99 of M/S. Finolex is also enclosed, (v) He caused M/S. Gayatari Engineering Co. to furnish an offer dated January 8, 1999 for Rs. 80.48 lacs (Rs. eighty lacs forty eight thousand only)for the work and manipulated the record to show that no one other than M/S. Gayatari Engineering Co. was willing to undertake the work, (vi) He caused M/S. Gayatari Engineering Co. to pretend to reduce their order for the work to Rs. 60,35,728.00 (Rs. Sixty lacs thirty five thousand seven hundred and twenty eight only) to match with the aforesaid manipulated estimate of Rs. 60.34 lacs and thereby manipulated the approval of the work to M/S. Gayatari Engineering Co. for a total contract value of Rs. 60,35,728/-. There could be other acts of omission and commission on the part of M/S. Gayatari Engineering Co. and Sh. K.P. Sharma. Consequently, M/S. Gayatari Engineering Co. has hitherto been paid Rs. 40,65,709/(Rs. forty lacs sixty five thousand seven hundred and nine only) for the work by Panipat Refinery, resulting in a loss to Panipat Refinery and over payment to M/S. Gayatari Engineering Co. of more than about Rs. 38.33 lacs (Rs. Thirty eight lacs and thirty three thousand only)." Consequently, it was stated that offences under Section 420, 467, 471 and 120-B IPC and under Section 7, 12 and 13(d) of the Prevention of Corruption Act read with Section 120B, IPC had been committed by the petitioner and Shri D.R. Patel, a partner of M/S. Gayatari Engineering Company. 2. The petitioner is seeking anticipatory bail on the ground that he is a small fry in the organisation and had prepared the estimates and papers at the asking of senior officials who are now trying to pass the buck on to him. 2. The petitioner is seeking anticipatory bail on the ground that he is a small fry in the organisation and had prepared the estimates and papers at the asking of senior officials who are now trying to pass the buck on to him. He also indicated in the petition that he has already resigned from the job and in order to get back at him these officials are not relieving him because of which he had already approached the Delhi High Court on 7.2.2000 for issuance of appropriate directions. After his resignation, he has taken up employment with M/S. Lurgi India Company Limited from where after the filing of the writ his services have been terminated on 8.2.2000. 3. On 19.7.2000, while issuing notice to Advocate General, Haryana, this Court had directed the petitioner to appear before the Investigating Officer so that progress could be made in the investigation of the case. Thereafter, the petitioner moved Criminal Misc, No. 27151 of 2000 seeking permission to leave India as he had been given employment in the Sultanate of Oman. Whereupon the Court had while adjourning the case on 18.8.2000 passed the following order:- "In the meantime, the petitioner shall make himself available in Police Station Matlauda, Panipat for joining the investigation from 10.00 A.M. to 5.00 P.M. on every day from 19.8.2000. The investigating agency shall devote maximum time and ensure that some progress is made in the case." 4. I have heard the learned counsel for the parties and have gone through the various documents placed on the record by them. 5. On behalf of the petitioner it has been submitted that the management of the Corporation is bent upon hounding him out of very possible employment that he could obtain in the country and this fact has forced him to seek employment abroad. He further states that he has obtained a three years contract in Oman and is prepared to give any undertaking which would satisfy the Court that he would make himself available for investigation and return to India to face his trial as and when required. 6. He further states that he has obtained a three years contract in Oman and is prepared to give any undertaking which would satisfy the Court that he would make himself available for investigation and return to India to face his trial as and when required. 6. On behalf of the State, Shri Dahiya fairly conceded that for the present, especially in view of the petitioners having joined the investigation for 14 days, his custody would not be required as all the documentary evidence which has been collected by the internal vigilance team of the Corporation has been sealed and the matter has been referred to the Chief Vigilance Commissioner for appropriate orders. He, however, states that the enquiry conducted by the Corporation has found the petitioner responsible for forging of documents, major deviations from rules and procedures, pressurising his subordinates for committing wrongful acts, failure as HOD in properly guiding his subordinates, seeking illegal gratification, failure to protect the interest of the Corporation, causing heavy financial loss and bringing disrepute to the Corporation while projecting a picture of unjustifiable urgency to the PR management and signing documents on back dates. He has also indicated that departmental enquiry had given a report against Shri S.S. Saini, ED(Offtg), Shri H.K. Bakshi, GM(PJ), RH, Shri A.K. Manchanda, DGM(EIRP), Shri R. Shankar, CFM, Shri M.R. Verma, CIPM, Shri Parimal Kumar, MNM and Shri A.K. Kulshrestha, SMLE beside the petitioner and this is probably the reason why the petitioner is not being (relieved of his duties despite the fact that he had tendered his resignation after giving three months notice on 9.8.1999. 7. To the same effect were the submission made by Shri R.K. Chhibbar, Senior Advocate, appearing for the complainant. Both Shri Dahiya and Shri Chhibbar strongly opposed the grant of any permission to the petitioner for leaving India and joining his assignment in Oman lest he is tempted to protract the investigation and fleeing from justice. 8. I have given my thoughtful consideration to the respective submissions. In the present case, the petitioner is not only seeking the relief of anticipatory bail but is also wanting modification of clause (c) of Section 438, Cr. P.C. in such a manner which permits him to leave the country to take employment in a company based at Oman in pursuance of the contract entered into by him. 9. In the present case, the petitioner is not only seeking the relief of anticipatory bail but is also wanting modification of clause (c) of Section 438, Cr. P.C. in such a manner which permits him to leave the country to take employment in a company based at Oman in pursuance of the contract entered into by him. 9. In relation to the first part of the relief sought for by the petitioner, according to the State, for the present his custody is not required and there would be no difficulty in making the interim order passed by this Court on 19.7.2000 granting him anticipatory bail absolute till such time as the Investigating agency moves an application for his custody for the purposes of interrogation. 10. It is only the second part of the submission made by the petitioners counsel which seeks permission to leave India and take up service with his prospective employer in Oman that the difficulty arises. This is on account of the fact that inspite of the best intentions exhibited by the petitioner in seeking modification of a part of the order requiring him not to leave the country and offering to give any security for returning to India as and when required initially by the investigating agency and joining the investigation and thereafter by the Court to face the trial, this Court will have to weigh the possibility of the investigating agency as well as the Court loosing control over the investigation and the trial on account of the circumstances which may even be beyond the control of the petitioner. A perusal of the offer of employment, copy whereof has been made available for perusal of the Court alone shows the relevant terms as under:- "2. The Contract period shall be 24 months from the date of commencement of the Employees service, which can be renewable after every two years. 3. The employee shall be on probation for period of three months from the date of joining. On satisfactory completion of the probationary period, his services shall be confirmed. If his services are not found satisfactory within the probationary period, the Company may terminate his services without any notice to him. 4. The Company shall provide free air ticket to the Employee from BOMBAY to MUSCAT for joining duty and for leave travel as detailed under Clause 8 hereof. If his services are not found satisfactory within the probationary period, the Company may terminate his services without any notice to him. 4. The Company shall provide free air ticket to the Employee from BOMBAY to MUSCAT for joining duty and for leave travel as detailed under Clause 8 hereof. He will also be eligible for air ticket for his wife as detailed under Clause 7 hereof. 7. On satisfactory completion of 03 months service, the Employee will be eligible for a House Rent Allowance of RO 160/- per month and furnishing allowance of RO 35 for a period of 42 months as per the Company Rules. He will be eligible for one-way air ticket for BOMBAY/MUSCAT for his wife for her subsequent family joining. Subsequently, he will also be eligible for return air ticket for his spouse MUSCAT/BOMBAY/MUSCAT on completion of every two years service. 8. 30 days paid leave shall be granted to the Employee on completion of every 12 months service, with return air ticket (MUSCAT/BOMBAY/MUSCAT). 16. In the event the Employees services are terminated consequent to any misconduct on his part, such as insubordination, frauds, misappropriation, strikes, refusal to work, violation of the Countrys law or any other misconduct, the Employee shall not be eligible for End-of-Service Benefits viz leave salary, Gratuity and Air Ticket. 17. You will be required to keep passport under the custody of the Company during your tenure of sponsorship with this organisation." Shows that the employer wants to ensure an undivided commitment from his employee to the work in hand and would not permit the monthly visit to India and absence for 6 to 7 days at a time which may be required of the petitioner until the investigation is completed and a longer stay in the India which he might have to undertake after the trial begins. Although, the petitioner has brought on record a fax message indicating that clause 17 of the above contract stands deleted yet the tenure of the contract of employment by and large indicates that the petitioner would be required to give his undivided attention to the project undertaken by the employer and may not find it possible to cope up with the constraints and pressure which he is likely to face during the pendency of the investigation and trial. Since, as per his own showing, the petitioner has not apprised his employer of the circumstances in which he had left the service of the Corporation and the pendency of the enquiry and criminal proceedings, therefore, he may be tempted to avoid the obligations which he would be required to meet on account of the bail order. 11 The matter can be looked at from another angle also. A perusal of Sub clause (iii) of Section 438, Cr.P.C. shows that it empowers the Court to permit an accused to leave the country. This would necessarily imply that the departure would be temporary and for a short period and he would not shift his permanent residence for a long period even on account of employment so as to ensure the availability of the presence of the accused as and when required in the country by the police or the Courts of law. In the present case, when the petitioner is taking up a contract which initially ensures him employment in the Sultanate of Oman for 24 months, it may not be possible for the Court to permit the departure by which he may be encouraged to cut of his link with all the routes that he may have in India and set up a new residence in the country to which he is immigrating. 12. Seen in the light of these possibilities, the observations contained in judgment of the Supreme Court in S.L.P. No. 1013 of 1989 (Ajay Aggarwal v. Union of India and Ors.) would hardly be of any assistance to this Court for granting the relief sought for by the petitioner. 13. For the reasons recorded above, the order passed by this Court on 19.7.2000 is made absolute, subject to the conditions mentioned in that order. It is further clarified that if at any stage the Investigating Agency requires the custody of the petitioner, it will be open to it to move an appropriate application before the Illaqa Magistrate for the purpose of interrogation who will pass appropriate orders thereon after taking into consideration the relevant material which has been collected by the Investigating Agency. The petitioner shall also surrender his passport to the Investigating Officer, who in turn shall sent information regarding this order immediately to the Passport Offices and the immigration authorities. Criminal Misc. No. 27151 of 2000 is dismissed accordingly. 14. The petitioner shall also surrender his passport to the Investigating Officer, who in turn shall sent information regarding this order immediately to the Passport Offices and the immigration authorities. Criminal Misc. No. 27151 of 2000 is dismissed accordingly. 14. This order will enure till the filing of the challan when the petitioner will furnish fresh bail bond to the satisfaction of the Trial Court. 15. Thereafter, in case the petitioner absents himself with the Court proceedings on any date without prior permission of the Court, it will be open to the trial Court to cancel his bail and secure his presence through nonbailable warrants. 16. However, it is hoped that the investigating agency will take steps to expedite the completion of the investigation so as to reduce the ordeals he is likely to face and seek employment with any other employer. 17. Copy of the order be given dasti on payment of usual charges.