Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 433 (PAT)

Santosh Printing Press v. State of Bihar

2012-03-13

S.N.HUSSAIN

body2012
ORDER This writ petition has been filed by the petitioner for the following reliefs:- (i) For quashing of the enquiry report dated 22.06.2009 communicated to the petitioner vide letter no.546 dated 22.06.2009, as being wholly illegal and contrary to the order passed by this Hon’ble Court in C.W.J.C. No.11974 of 2007. (ii) For a declaration that the enquiry report dated 22.06.2009 cannot be enforced as the same has not considered the day-to-day report of the Ministry of Home Affairs, which has not been contradicted even by the Disaster Management Department of the State Government, the only Department to certify the distribution of relief material in case of flood/natural calamities. (iii) For a direction to the respondent authorities to implement the day-to-day report of the Ministry of Home Affairs (Nodal Agency for flood), which has not been considered by the Committee in its report dated 22.6.2009 on flimsy and impractical grounds. (iv) For a direction to the respondent authorities to settle the account of the petitioner in terms of day-to-day report of the Ministry of Home Affairs and report of the Disaster Management Department so far as supply of relief materials to the beneficiaries is admitted in both the report; and for any other relief or reliefs for which the petitioner are entitled. 2. Learned counsel for the petitioner submitted that while the Tender for Flood Fighting Measures’ 2004 for Patna was under process, on 09.07.2004, the Secretary, Disaster Management Department, Govt. of Bihar on the direction of Chief Secretary, Bihar issued an order dated 09.07.2004 to the District Magistrate, Patna to arrange the Flood Relief Materials for Sitamarhi in the evening itself, at State Hanger. Contents of the said order itself show emergent situation and departure from the Normal Rule applicable to normal situation. In this emergent situation Flood Relief Operation, 2004 commenced and on the supply made by petitioner it continued for a record breaking (after 1987 in the State) Month long Relief Operation (one of the longest in country) being carried from Patna under the joint vigil & supervision of the State Government’s High Official along with the Team of Officials of Ministry of Home Affairs, Govt. of India, headed by the Chief Secretary of the State and also by the then vigilance SP, Sri Ajit Joy. 3. of India, headed by the Chief Secretary of the State and also by the then vigilance SP, Sri Ajit Joy. 3. It is also stated that unfortunately by the time relief operation was over and file for final payment was moving, there was change of regime in the State and out of political agenda criminal prosecution was launched in connection with Flood Relief Operation, 2004. Petitioner being a bonafide supplier and confident about the quantum of supply voluntarily surrendered before the court of law under an impression that if the matter will be fairly investigated allegation will never be substantiated. The Daily Situation Report of Ministry of Home Affairs (SITREP’04), the only Contemporaneous Record of Flood Relief Operation’04 and the Report of Disaster Management Department, Govt. of Bihar which not only contains the detail of material distributed during the relief operation, were deliberately withheld and concealed from investigating agency for obvious reason that consideration of the said reports would frustrate the entire allegation levelled. 4. Learned counsel for the petitioner claimed that he had to go through the pain of about 18 months incarceration for the courage and spirit he had shown during the record breaking and longest ever relief operation successfully and that too without any complain from any corner. After coming out of jail petitioner started making demand for quantification of material supplied by him during the Relief Operation. Thereafter petitioner filed CWJC no.11974 of 2007 which was disposed of with direction to the respondent-Chief Secretary, Govt. of Bihar to constitute a Committee, which would scrutinize all papers and come to a finding with regard to work done and payment made or due within a time frame of six months vide order dated 28.07.2008 (Annexure-9/page-95). The respondents tested the order of the Hon’ble Single Judge in L.P.A. No.15 of 2009 as well, which was dismissed by Hon’ble Division Bench of this Hon’ble Court vide order dated 23.01.2009. Thereafter petitioner had to file contempt petition and a bench of this Court vide order dated 29.4.2009 (Annexure-11/Page-101) issued Rule of Contempt against the Chief Secretary for deliberate non-compliance of order of this Hon’ble Court and in this situation the respondent-Chief Secretary constituted a Committee to calculate the material supplied/work done and the payment made and or due. 5. Thereafter petitioner had to file contempt petition and a bench of this Court vide order dated 29.4.2009 (Annexure-11/Page-101) issued Rule of Contempt against the Chief Secretary for deliberate non-compliance of order of this Hon’ble Court and in this situation the respondent-Chief Secretary constituted a Committee to calculate the material supplied/work done and the payment made and or due. 5. He further averred that the said Committee did not consider any of the direction of this Hon’ble Court and right from the first day of meeting petitioner pointed out to the Committee constituted by the Chief Secretary that until the two reports i.e. SITREP’ 04 (Annexure-6) and Report of D.M.D., Govt. of Bihar (Annexure-7) and their inputs would not be considered there would be no compliance of the direction of the Hon’ble High Court and the same reflected from the minutes of proceeding annexed with the report but very strangely the Committee proceeded in the manner as if the Committee was sitting in Appeal over the order of this Hon’ble Court. Hence the exercise by the Team/Committee in purported compliance of the order of this Hon’ble Court was nothing but an eye-wash and the same was evident from the content of report and the Annexure attached with the report. The State Government in its counter affidavit pleaded that State did not recognize the petitioner as a supplier, but had no answer to deal with the situation wherein the petitioner was sent to custody as a supplier and the corporation which is being recognized by the State clearly stated in its affidavit that the petitioner should directly deal with the District Magistrate, Patna for supply of relief materials. Although, this issue was not open to be agitated again as the bench of this Court had concluded in CWJC No.11974 of 2007 that the petitioner as a supplier, had acknowledged the fact that the supply was made in emergent situation and had acknowledged the reports of the concerned department and in this background only the Committee was directed to quantify. 6. 6. Learned counsel for the petitioner argued that the report of the Committee which is under challenge in the present writ petition did not consider the report of Ministry of Home Affairs but has made a reference that day to day reports have been considered and the glaring example and deliberate non-consideration is as under: i. MHA report dated 06.08.004 at page 87 says that readymade food air drop is 816 Metric Tones, whereas the Committee in its report has calculated (at page 121) as 591 Metric Tones (page 12 of the writ petition). ii. Similarly readymade food distributed through road as per the report of Ministry of Home Affairs (page 87) is 27925 quintals, whereas the committee in its report (page 123 of the writ petition) has considered the total relief materials distributed as 936 Metric Tones, which is equal to 9360. As such the Committee has considered only 1/3rd supply by road. iii. The Ministry of Home Affairs in its last report dated 06.08.2004 (at page 87) has already quantified 4.68 lacs of Polythene sheets and the value of one sheet of polythene is well known to the District Magistrate, Patna, who invites tender, every year for procuring relief materials in cases of calamities/flood in Right to Information Act (at page 207 of the writ petition, Annexure-16). The weight of one polythene sheet of 15ft./12 ft. is 6.004 Kg. If the quantum of 4.68 lacs of polythene sheets is applied to the prevailing rate the cost of polythene sheet alone would come to Rs.22.83 Crores. 7. Learned counsel for the petitioner further claimed that for Flood 2007, the Disaster Management Department claimed Rs.65 Crores for relief materials air dropping by 4 small Helicopter flying for 19 days, but in the case of 2004 flood 10 big Helicopters flying for 26 days air dropping relief materials for Rs.6.2 Crores, only was claimed as per the Committee, which is a glaring example of contradiction and is suggestive of the fact that the committee although had the entire documents before it, but in order to accommodate the figure of the Department of Vigilance, violated the order of this Hon’ble Court passed in the earlier writ petition. 8. He also claimed that Disaster Management Act, 2005, which came into force with effect from 23.12.2005 under Section 50 deals with Emergency Procurement and Accounting. 8. He also claimed that Disaster Management Act, 2005, which came into force with effect from 23.12.2005 under Section 50 deals with Emergency Procurement and Accounting. In the present case the DM, Patna had asked for a sum of Rs.38 Crore with respect to DMA for making payment to supplier and the DM, Patna being the nodal officer and overall incharge of the relief operation was the competent authority to calculate, as utilization certificate was issued by him earlier. 9. According to the petitioner the following aspects of the matter is not disputed:- (a) In Emergent situation the petitioner through/on behalf of Bihar State Small Scale Industries Ltd. made supply (concluded by this Hon’ble Court in C.W.J.C No.11974/07) at Patna for one month long Flood Relief Operation duly supervised by Central Team (Officials of Ministry of Home Affairs) & Highest of functionaries of State Govt. (b) It is not the finding of the Committee that there is any other supplier than the petitioner through/on behalf of B.S.S.I.C. (even after lapse of more than 7 years). (c) There are two figures of materials distributed during Flood Relief Operation’ 2004 (Both are from the Nodal Department For Disaster Management) 1, by the Ministry of Home Affairs, Govt. of India, i.e. Daily Situation Report for the Flood’ 2004 (from 10.7.04 to 6.8.04) (Annexure-6) 2, by the Disaster Management Department of respondent –State itself (this report is after two months of completion of Flood based on Form-9 received from all flood effected Districts issued on 15th Oct, 2004), (Annexure-7) and there is no adverse conclusion by the Committee about its genuineness. 10. Learned counsel for the petitioner finally argued that it was not open for respondent not to take into account the figure of materials mentioned in Daily Situation Report of Ministry of Home Affairs (which is to the tune of Rs.45 Crore) & the Report of Disaster Management Department, Govt. of Bihar (which is to the tune of Rs.60 Crore) whereas against the supply advance of only Rs.17.80 Crore has been made by the respondent-State. of Bihar (which is to the tune of Rs.60 Crore) whereas against the supply advance of only Rs.17.80 Crore has been made by the respondent-State. Furthermore, since the report of MHA is now not disputed by any of the parties in the present proceeding, the District Magistrate, Patna should be directed to calculate the value of relief material distributed in terms of MHA report and make payment to the petitioner accordingly within a reasonable time, as the D.M. Patna, is the only competent person to quantify. 11. On the other hand, learned counsel for the respondents-State of Bihar and its authorities contested the claim of the petitioner and stated that the only question involved in the instant case is as to whether the petitioner had completed his work and was entitled to receive the money. Such a claim is not based on any provision of a Statute, rather it is like a claim between two executees of a contract or between a creditor and a debtor. Hence, reliefs claimed by the petitioner cannot be granted by this Court under the provision of Article 226 of the Constitution of India and claim for contractual obligation is not maintainable in a writ petition. In this connection, he relied upon a decision of a Bench of this Court in case of Shree Baidyanath Ayurved Bhawan Pvt. Ltd., Patna Vs. State of Bihar and others, reported in Air 1978 Patna 126 as well as a decision of the Apex Court in case of M/s Radhakrishna Agarwal and others, Vs. State of Bihar & others, reported in AIR 1977 SC 1496 . 12. Learned counsel for the respondents-State submitted that the petitioner did not have any locus standi for claiming any payment from the Government because at the time of floods in the year 2004, a meeting of the District Purchase Committee was held on 15.6.2004 with respect to purchase of flood reliefs materials and a tender notice was issued in daily newspaper, namely Prabhat Khabar and Hindustan, on 19.6.2004 and after following due procedure of law only Bihar State Small Scale Industries Corporation Limited (hereinafter referred to as “the Corporation” for the sake of brevity) was selected as supplier for flood reliefs materials. He further stated that the petitioner was never in picture as supplier for flood relief materials and if the petitioner had procured payment through fraudulent activity it cannot be said that he was entitled to any civil right. He also submitted that the petitioner was involved in fraudulent activity and in similar matter a criminal case had also been instituted against him and this time also the petitioner again committed fraud in connivance with the Government and the Bank officials and received payment of cheque issued from the District Administration which was meant for the Corporation misinterpreting the abbreviation of the Corporation namely BSSIC as BABA SAT SAI INTERPRISES CORPORATION. This fraud was discovered and a criminal case was filed by the Department of Vigilance, Government of Bihar, Patna. 13. Learned counsel for the respondent-State also averred that the petitioner along with his two learned advocates had also participated in the settlement of his claim before the Committee and proper opportunity was accorded to them to present their facts and figures and only thereafter entire facts and circumstances were considered in enquiry by the Committee which came to specific conclusions and submitted its report which speaks of real state of the affairs as well as illegal activities of the petitioner. The petitioner wanted to claim the money on the basis of day to day report of Ministry of Home Affairs which was suitably dealt with by the Committee constituted by the order of the High Court which is self explanatory and had expressed its limitation and had very specifically stated that it had to try and establish its own proceeding and any such claim of the petitioner towards civil liability is not maintainable in view of the aforesaid report. Hence, he claimed that the report of the Committee being in accordance with the specific directions of this Court given in the earlier writ petition there is no illegality in the proceeding in question and hence it needs no interference. 14. Hence, he claimed that the report of the Committee being in accordance with the specific directions of this Court given in the earlier writ petition there is no illegality in the proceeding in question and hence it needs no interference. 14. Learned counsel for the Vigilance Department (respondent no.5) adopted the arguments of learned counsel for the State of Bihar and stated that respondent no.5 was also included in the inquiry Committee as directed by the High Court vide order dated 27.08.2008 passed in CWJC no.11974 of 2007, whereafter the inquiry continued in accordance with law as well as according to the directions of this Court and no illegality had been committed in that connection. 15. Learned counsel for the Corporation (respondent no.7) stated that only the Corporation was engaged for the reliefs supply work by the District Magistrate, Patna, whereas the petitioner was never engaged for the said work and neither the District Magistrate, nor the Corporation had ever issued any supply order to the petitioner and hence any claim raised by the petitioner is not legal and proper. 16. Learned counsel for respondent no.7 further claimed that for the aforesaid fraudulent act of the petitioner, Vigilance P.S.Case No.08 of 2005 was instituted in which some employees as well as its Managing Director were made accused and now they are on bail, but so far the amount is concerned, huge amounts were paid to the petitioner’s representative by cheque. This fact had also been stated before the Committee constituted as per the direction of the High Court. He further claimed that the stand of the Corporation had been fully stated in the counter affidavit filed on behalf of the State of Bihar and its authorities. 17. Learned counsel for the Union of India (respondent no.8) stated that the matter is between the petitioner and the Corporation which has to be settled by the State Government, whereas the Union of India had no say in it. He further submitted that even in the earlier order of the High Court directions were given to the authorities of the State of Bihar and the Corporation. 18. He further submitted that even in the earlier order of the High Court directions were given to the authorities of the State of Bihar and the Corporation. 18. From the arguments raised by learned counsel for the parties and the materials on record it is quite apparent that the main question involved in this case is as to whether there is any contractual obligation between the parties concerned and whether they had performed it properly. Hence, while deciding earlier case bearing CWJC No.11974 of 2007 filed by the petitioner with respect to the same matter a Bench of this Court was very cautious in deciding the same vide order dated 28.07.2008 and passed the following order:- “I, therefore, direct the Chief Secretary to immediately constitute a team with officials from the concerned departments, which would also include the vigilance department, they would scrutinize all papers and come to a concrete finding with regard to the work done and the payment made and or due. This would be settling civil liability, which had to be tried and established on its own proceedings. Such an exercise must be completed within a period of six months from today. This order is being passed on the premise that governmental action may it be in respect of contract or in furtherance of a constitutional obligation has to be in conformity with Article 14 of the Constitution. Non-finalizing of a dispute, which is a matter of accountancy for a long period, per se, is arbitrary. It goes without saying that the Committee so empowered and constituted would necessarily have to disclose figures and hear the respondent –Corporation and petitioner and their like, as well, as the petitioner claims to be a beneficiary, in the matter. It would be obliged to be heard and gave a copy of the report ultimately made. The parties would have their remedies as advised to them, as the report so finally gone up. But, this Court emphasizes once again that finalizing the matter is of utmost importance for fair conduct of governmental business. This, in my view, disposes of the writ petition.” 19. The parties would have their remedies as advised to them, as the report so finally gone up. But, this Court emphasizes once again that finalizing the matter is of utmost importance for fair conduct of governmental business. This, in my view, disposes of the writ petition.” 19. A bare perusal of the aforesaid papers and reports including the finding arrived at by the Committee sufficiently shows without any shadow of doubt that all the papers were scrutinized and concurrent finding was arrived at by a team of officials of the Committee constituted by the Chief Secretary and the civil liability has been duly settled as per the aforesaid order of this Court. A mere report of the Ministry of Home Affairs cannot be the final criteria to decide a civil liability, especially when the stand of the Central Government is that the matter has to be settled with the State Government and the Corporation. 20. However, in any view of the matter, the said Committee in its report has not only considered the facts and circumstances of the case, but has also dealt with the aforesaid report of the Ministry of Home Affairs and submitted its report which this Court finds to be a valid, legal and proper report by the Committee which acted as per the directions of this Court. The respondents have produced the minutes of the meeting of the inquiry Committee dated 06.06.2009 which speaks volumes about the conduct of the petitioner which is fully supported by materials on record, whereas on the other hand not a single paper has been produced by the petitioner to show that he had ever applied for or had been given the work in question. 21. In the aforesaid facts and circumstances, this Court does not find any merit in the claim of the petitioner nor does it find any reason to interfere with the impugned steps/orders of the respondent-authorities which appear to be legal, valid and proper. Accordingly, this writ petition is dismissed.