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2006 DIGILAW 619 (PAT)

Vinay Sharma v. State of Bihar

2006-07-21

body2006
V.N. SINHA, J.:- Heard learned counsel for the Petitioner and the Respondents. 2. Petitioner, who is an Executive Engineer in the Water Resources Department, Government of Bihar and at the relevant time served on the said post in Western Embankment Division, Kunauli at Birpur, in the district of Supaul, has filed this writ petition questioning the correctness and validity of the order, bearing Memo. No. 262 dated 17.3.2006, Annexure. 22, whereunder he has been placed under suspension in contemplation of a departmental proceeding fixing his headquarters during the suspension in the office of the Chief Engineer, Muzaffarpur. 3. By filing Interlocutory Application No. 2309 of 2006, he has also assailed the resolution of the State Government bearing Memo. No. 413 dated 20.4.2006, Annexure26, wherunder the departmental proceedings has been initiated against him under Rule 55 of the Civil Services (Classification Control and Appeal) Rules, 1930 and charge Sheet along with memo of evidence has been served. 4. The grounds raised in support of the aforesaid prayer is that the suspension order, as contained in Annexure-22 has been passed asserting in subordination, non-compliance of the orders issued by the Govt. and the high officials amounting to in discipline leading to violation of the orders of this court. In this connection, it has been submitted that no Government order or the orders of the higher authority or of the Hon'ble Court has been referred to in the suspension order and thus according to the petitioner the same should be quashed on the ground of being vague as the same does not give any detail of the orders which the petitioner is alleged to have violated. The resolution containing the Memo of charge, Annexure-26 is assailed on the ground that after repeal of the Civil Services (Classification, Control and Appeal) Rules, 1930 by Civil Services (Classification, Control, and (Appeal) Rules, 2005 no proceeding under Rule 55 of the 1930 Rules could have been initiated. On merits also the Memo. The resolution containing the Memo of charge, Annexure-26 is assailed on the ground that after repeal of the Civil Services (Classification, Control and Appeal) Rules, 1930 by Civil Services (Classification, Control, and (Appeal) Rules, 2005 no proceeding under Rule 55 of the 1930 Rules could have been initiated. On merits also the Memo. of charge is assailed on the ground that from the facts narrated in the charge sheet as also the Memo of evidence served in support thereof, it does not appear that the petitioner deliberately violated the orders of the superior authorities issued in compliance of the orders of this Court dated 18.5.2005, passed, in C.W.J.C. No. 15455 of 2004, Annexure-7 to make payment of the 2002 dues of M/s Shambhawi Construction in regard to Flood Fighting work performed in between 2.25 to 9 kilometers of the Kosi embankment within the Western Embankment Division Kunauli Camp. Birpur in the district of Supaul. In this connection, learned counsel for the petitioner pointed out that when copy of the orders of this Court dated 18.5.2005, Annexure-7 passed in the case of M/s Shambhawi Construction directing the Commissioner and Secretary, Respondent No.3 and the Chief Engineer. Respondent No.5 of the said case to consider and dispose of the pending representation of M/s Shambhawi Construction was served on him under representation dated 24.5.2005 of M/s Shambhawi Construction, he examined the case of M/s Shambhawi Construction on the basis of the records available in the division and submitted his report, bearing No. 463 dated 28.5.2005, Annexure-8 requesting the Commissioner Secretary of the department, Chief Engineer Superintending Engineer to finalize the claim in the light of the available documents as in the Division/Sub-division complete documents including the registers referred to in paragraph 6 of the report were not available. The department thereafter issued instructions contained in letter no. 1305 dated 3.6.2005 and thereunder all the pending Flood Fighting claims for the years 2002, 2003 and 2004 on account of non-compliance of the departmental instructions contained in paragraph 4 of letter no. 949 dated 11.5.2002, Annexure-9 including that of M/s Shambhawi Construction were referred to the Liability Committee with instructions to take final decision in the matter on or before 30.6.2005, failing which on receipt of adverse order from the Court, the officials will have to make payment from their personal pocket. 949 dated 11.5.2002, Annexure-9 including that of M/s Shambhawi Construction were referred to the Liability Committee with instructions to take final decision in the matter on or before 30.6.2005, failing which on receipt of adverse order from the Court, the officials will have to make payment from their personal pocket. In the meeting of the Liability Committee held on 30.6.2005 no recommendation was made in regard to M/s Shambhawi Construction, which fact is evident from the minutes of the proceedings dated 30.6.2005, Annexure-F. The Special Liability Committee constituted at the level of the Chief Engineer, Water Resources Department, Birpur in their meeting held on 3.8.2005 also recommended that appropriate decision in regard to payment to M/s Shambhawi Construction should be taken at the departmental level, which fact is evident from the minutes dated 3.8.2005, Annexure-II, The Special Liability Committee again considered the pending Flood Fighting claims, including that of M/s Shambhawi Construction in their meeting held on 13/15.9.2005 and again recommended that the department itself may take appropriate decision in regard to all : pending claims including that of M/s Shambhawi Construction, which fact is also evident from the recommendation of the liability Committee dated 13/15.9.2005, Annexure-11 A to the writ petition. 5. It appears, the department without passing specific order approving the claim of M/s Shambhawi Construction, proceeded to make allotment of Rs. 13,114 lacs to the Western Embankment Division, Kunauli Camp, Birpur in the district of Supaul through Devi Rajak, Engineer-in-chief (North) under letter no. 398 dated 17.9.2005, Annexure-J to the counter affidavit of Respondent No.2 with remarks that the allotment is made in the light of the orders, passed by this Court in C.W.J.C. No. 15455 of 2004 to clear the pending dues of M/s Shambhawi Construction in regard to the Flood Fighting work of the year 2002. Having made aforesaid allotment, Sri Devi Rajak, Engineer-in-chief (North), with reference to the said allotment order, bearing No. 398 dated 17.9.2005, Annexure-J, issued further directions contained in letter no. 2276 dated 17.9.2005, Annexure-12 to the petitioner and called upon him to pass another reasoned order in regard to the admissibility of payment to M/s Shambhawi Construction for the Flood Fighting work done. during the year 2002 on the basis of the available documents, especially from 24. 2276 dated 17.9.2005, Annexure-12 to the petitioner and called upon him to pass another reasoned order in regard to the admissibility of payment to M/s Shambhawi Construction for the Flood Fighting work done. during the year 2002 on the basis of the available documents, especially from 24. It was further made clear in the said order that the Executive Engineer should not pass payment order only on the basis of the allotment of the due amount as allotment has been made keeping in view the pendency of the case and time constraint. For any inadmissible/erroneous payment, the Executive Engineer shall be held responsible. Petitioner in compliance of the instructions contained in letter dated 17.9.2005, passed reasoned order, bearing letter No. 820 dated 23.9.2005, Annexure-13 and held that M/s Shambhawi Construction was not entitled to any payment for the Flood Fighting work said to have been done in between 2.25 kilometers to 9.00 kilometers of the Western Kosi Embankment during the year 2002. The department having considered the reasoned order dated 23.9.2005 during the meeting dated 29/30.9.2005 again called upon the petitioner under instructions contained in letter no. 3926 dated 30.9.2005, Annexure-13A to make further clarifications in the light of the observations contained in the said letter dated 30.9.2005 including paragraph 9. Petitioner considered the instructions and the observations made during the meeting dated 29/30.9.2005 as also letter dated 30.9.2005 and submitted his clarifications under letter no. 858 dated 6.10.2005, Annexure-14 as also passed reasoned order, which is contained in letter No. 859 dated 6.10.2005, Annexure-15, perusal whereof indicates that the same is in continuation of the earlier reasoned order. Copy of the clarification was also sent to the office of the Accountant General, Bihar. Perusal of the clarification and reasoned order indicate that the claim of M/s Shambhawi Construction was held not only in violation of the Codal provision but also fictitious. The Departmental Liability Committee in their meeting dated 22.11.2005 again reiterated the recommendations of the Special Liability Committee dated 15.9.2005, which is contained in Annexure-17. Perusal of the clarification and reasoned order indicate that the claim of M/s Shambhawi Construction was held not only in violation of the Codal provision but also fictitious. The Departmental Liability Committee in their meeting dated 22.11.2005 again reiterated the recommendations of the Special Liability Committee dated 15.9.2005, which is contained in Annexure-17. The Chief Engineer, Birpur in consideration of the orders of this Court dated 18.5.2005, recommendation of the Liability Committee dated 15.9.2005 and 22.11.2005 as also the letter of allotment, bearing Letter No. 398 dated 17.9.2005 and further dated 17.9.2005 that payment made only on the basis of allotment order shall not relieve the concerned Executive Engineer of his responsibility of making erroneous payment, passed reasoned order, bearing Letter No. 4852 dated 25.11.2005, Annexure-17 A directing the Executive Engineer, Western Kosi Embankment Division Camp Birpur (petitioner) to make payment to M/s Shambhawi Construction for the year 2002 Flood Fighting work done on the Western Embankment in between Kilometers 2.25 to 9.00, The copy of the said order is at Annexures-17A, 23 and Annexure-M. Perusal of Annexure-23 and M, however, indicates that the Chief Engineer forwarded the said reasoned order to the Joint Secretary of the State Government with a request to obtain departmental approval of the directions contained in the reasoned order. 6. It is submitted on behalf of the petitioner that the State Government has not passed any order approving the aforesaid reasoned order of the Chief Engineer, Birpur dated 25.11.2005, Annexures-17 A/23. Learned counsel for the petitioner states that neither the Government approved the aforesaid payment nor specific order to that effect was passed either by the Secretary of the Department or the Chief Engineer concerned, accordingly, he did not make payment until show cause reply dated 3.1.2006 in M.J.C. No. 1746 of 2005, Annexure-N to the counter affidavit was filed placing on record the aforesaid direction of the Chief Engineer dated 25.11.2005. In the background of the aforesaid fact, learned counsel for the petitioner further submitted that in terms of the orders of the High Court dated 18.5.2005, Annexure-7, the Secretary and Commissioner of the Department as also the Chief Engineer concerned were directed to consider the pending representation of M/s Shambhawi Construction in regard to the Flood Fighting claims of the year 2002, none of the two functionaries ever issued any clear cut direction to make such payment. Departmental instruction contained in letter No. 398 dated 17.9.2005 has been issued under the signature of the Engineer-in-Chief (North) and it only indicates allotment of fund for the purposes of meeting the Flood Fighting claims of the year 2002 of M/s Shambhawi Construction in the light of the orders of the High Court passed in C.W.J.C. No. 15455 of 2004. Perusal of the said letter, however, does not indicate that thereunder any authorization/directions were issued by either the Secretary/Commissioner of the Department or the Chief Engineer concerned (who were directed by this Court to consider the representation of M/s Shambhawi Construction) to make such payment to M/s Shambhawi Construction. It is further pointed out that the Engineer-in-chief (North) having issued the said letter No. 398 dated 17.9.2005 making allotment of the fund proceeded to issue letter no. 2276 on 17.9.2005 itself, with reference to the aforesaid letter of allotment, bearing letter No. 398 dated 17.9.2005 and thereunder he made clear that payment to M/s Shambhawi Construction should not be made only on the basis of the letter making allotment of fund by the department but the executive Engineer should consider the case in the light of available documents especially form 24 and pass reasoned order and for any erroneous payment he shall be held responsible. In regard to subsequent reasoned order, passed by the Chief Engineer, Birpur, bearing letter No. 4852 dated 25.11.2005, directing the Executive Engineer to make payment, it was submitted that the Chief Engineer himself forwarded the said order to the Joint Secretary of the State Government with a request to obtain and report departmental approval, which was never granted and for want of Govt. approval order dated 25.11.2005 never became operative. In this connection, it was also submitted that the Chief Engineer could not have modified the instructions of the Engineer-in-Chief (North) contained in letter no. 2276 dated 17.9.2005, Annexure-12 that payment should not be made only on the basis of the letter of allotment and before making payment the Executive Engineer should examine the claim in the light of the available documents, otherwise he shall be held responsible for making erroneous payment. 2276 dated 17.9.2005, Annexure-12 that payment should not be made only on the basis of the letter of allotment and before making payment the Executive Engineer should examine the claim in the light of the available documents, otherwise he shall be held responsible for making erroneous payment. In this connection, it was also pointed out that the different senior functionaries of the department including the Secretary/Commissioner, the Engineer-in-Chief, the Joint Secretary and the Chief Engineer deliberately and knowingly did not pass any positive ,order to make payment of the 2002 dues of M/s Shambhawi Construction for Flood Fighting as the Flood Fighting liability/dues of the years 2002, 2003 and 2004 stood already considered and rejected by the department in the light of the departmental circular, bearing letter No. 949 dated 11.5.2002, Annexure-9 the year 2003-04, which fact is evident from the note sheet appended with Annexure-25. Request to review the earlier rejection was also considered and rejected by the departmental Secretary Sri V. Jaishankar, vide his notes dated 8.1.2004 at page 361 of the brief. 7. Sri Tara Kant Jha, learned Senior Advocate for the State, on the other hand, with reference to the report of the petitioner himself dated 28.5.2005, Annexure-8, submitted that in view of the contents of the report, he ought not to have opposed the payment as it was he who recommended the claim to the authorities and the Liability Committee having considered the claim on different occasions, i.e. 13/15.9.2005 and 22.11.2005, the Department issued fund/allotment order, bearing Letter No. 398 dated 17.9.2005, Annexure-J, whereunder necessary funds were made available, payment ought to have been made to M/s Shambhawi Construction in any else after direction of the Chief Engineer was issued in the reasoned order dated 25.11.2005, Annexure-17 A the petitioner having ignored the aforesaid orders has rightly been placed under suspension and the proceedings having begun, this writ petition should be dismissed with direction to conclude the proceeding within reasonable time. 8. 8. Having heard counsel for the parties and having perused the different orders referred to by the learned counsel for the parties during the hearing, namely, orders of this Court dated 18.5.2005, Annexure-7, the report of the petitioner dated 28.5.2005, Annexure-8, the different recommendations of the Liability Committee dated 30.6.2005 at page 179 of the' brief, 3.8.2005, Annexure-H, order dated 15.9.2005, Annexure-11A, 22.11.2005, Annuxure-17, letter making allotment of fund dated 17.9.2005, Annexure-J and subsequent instructions issued with reference to the letter of allotment dated 17.9.2005, Annexure-12 direcing the Executive Engineer to pass a reasoned order holding him responsible for making payment and the subsequent reasoned order of the Chief Engineer dated 25.11.2005, Annexure-17A/23 directing the Executive Engineer to make payment, but forwarding the said order to the Government for obtaining approval of the directions to make payment, I am of the view that none of the functionaries, who were directed under orders of this Court dated 18.5.2005, Annexure-7 to consider and pass appropriate orders on the representation of M/s Shambhawi Construction even passed any positive order directing the petitioner to make payment. Order dated 25.11.2005, Annexure-17 A, whereunder the Chief Engineer has directed the petitioner to make payment but having forwarded the same for further approval by the Government made the directions issued thereunder subject to approval of the Government, which approval never came, as such, in my opinion, no positive order directing payment to M/s Shambhawi Construction was ever issued by any of the departmental functionaries, who were directed by this Court under orders dated 18.5.2005, Annexure-7 to consider the representation and pass orders. In the circumstances, suspension order dated 17.3.2006, Annexure-22 and the resolution of the State Government initiating departmental proceeding, Annexure-26 as also the Memo of charge served on the petitioner for failure to comply the departmental instructions to make payment to M/s Shambhawi Construction is wholly misconceived and is accordingly, quashed as arbitrary and violative of Articles 14 and 16 of the Constitution of India since they proceed on non-existent facts. 9. Before parting with the case, I would like to make an observation that the Flood Fighting ,claim of the different Division, including the Western Embankment Division where M/s Shambhawi Construction is alleged to have worked in the year 2002 was considered by the departmental authorities, including the then Hon'ble Minister on 2.8.2003 and the claim were rejected, with reference to the Govt. circular, bearing letter No. 949 dated 11.5.2002, Annexure-9 and thereafter request to review the same was also rejected under the notes of the then departmental Commissioner, Sri V. Jaishankar dated 8.1.2004 at page 361 of the brief. In the circumstances, it appears to me that the Flood Fighting claim of 2002 which stood already rejected by the State Government in the year 2003, could not have been paid without seeking the review of the orders of the State Government, which had rejected the claim initially in the year 2003. I, accordingly, direct the State Government to look into the matter and take appropriate remedial measures not only to recover the amount, which has been unauthorizedly paid but also to take both civil and criminal action against all those who are responsible for such payment as from the contents of paragraphs 13 and 14 of the counter affidavit of Respondent No.2 itself it appears that the Law Department had advised the department 0 seek explanation from the Field Officers as to why the norms were violated. 10. This application is, accordingly, disposed of. No cost.