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2018 DIGILAW 1519 (JHR)

Shiv Nath Singh Gonjhu v. State Of Jharkhand

2018-07-11

PRAMATH PATNAIK

body2018
JUDGMENT Pramath Patnaik, J. - Since the relief sought for in the aforesaid writ applications pertains to quashing of the order dated 06.01.2010 whereby the order of recovery of the amount has been passed by the respondent authorities in respect of petitioners and due to identical prayer in the aforesaid writ applications, with the consent of the respective counsel the matters have been heard analogously and are being disposed of by this common order. 2. In the captioned writ applications, the prayer has been made for quashing of the aforesaid order relating to recovery of Rs. 5,49,337/- (in W.P.(S) No.587 of 2010) in 35 monthly equal installment of an amount of Rs. 15,250/- and an amount of Rs. 15,587/- by way of last and 36th installment from the salary of the petitioner, Rs. 3,66,224/- (in W.P.(S) No.386 of 2010) in 35 monthly equal installment of an amount of Rs. 10,170/- and an amount of Rs. 10,274/- by way of last and 36th installment from the salary of the petitioner, Rs. 1,83,112/- (in W.P.(S) No.407 of 2010) in 35 monthly equal installment of an amount of Rs. 5,085/- and an amount of Rs. 5137/- by way of last and 36th installment from the salary of the petitioner and Rs. 1,83,112/- (in W.P.(S) No.412 of 2010) in 35 monthly equal installment of an amount of Rs. 5085/- and an amount of Rs. 5,137/- by way of last and 36th installment from the salary of the petitioner. 3. The facts, as have been delineated in the writ applications, in a nut shell, is that all the petitioners joined their services under the erstwhile State of Bihar in the Public Health and Engineering Department and after bifurcation they have been allocated to the State of Jharkhand and are working at the relevant point of time in the capacity of Executive Engineer/Assistant Engineer/Junior Engineer. While the petitioners were continuing on the aforesaid posts, a tender was invited in the name of Ramgarh Town Water Supply Scheme which got due approval of the erstwhile Public Health Engineering Department, Government of Bihar, Patna vide memo dated 26.12.1998 for an amount of Rs. 407.41 lakhs. While the petitioners were continuing on the aforesaid posts, a tender was invited in the name of Ramgarh Town Water Supply Scheme which got due approval of the erstwhile Public Health Engineering Department, Government of Bihar, Patna vide memo dated 26.12.1998 for an amount of Rs. 407.41 lakhs. After technical and administrative sanction, a notice of tender was issued in the year 2002-03 and the lowest bidder was allotted the work on 15% below by the order of the then Regional Chief Engineer and in terms of the said order the then Executive Engineer has entered into an agreement being Agreement no.F2-8/2002-03. Subsequently, a revised estimate for construction of a check dam to the amount of Rs. 99,09,550/- was prepared which got the technical sanction by the order of the Regional Chief Engineer, Ranchi vide letter dated 28.06.2003 and a supplementary agreement being Agreement No.F2-1/2003-04 was entered into by the then Executive Engineer in terms of the revised estimate and a fresh tender was again invited to complete the rest of the work. During the relevant time the petitioners were posted at Ramgarh Division. It has been further averred that on construction of the Check dam the total sanctioned amount was Rs. 65,81,000/- against which the revised estimate duly accorded sanction of an amount of Rs. 99,69,550/- which was sent before the Ramgarh Cantonment Board providing fund against which a sum of Rs. 94,87,767/- was provided. The Cantonment Board provided the amount to the Division in different installment and in anticipation of the fact that the next installment will also be released by the Cantonment Board the work was completed but all of a sudden the Cantonment Board stopped the amount and a sum of Rs. 7,70,709/- could not have been paid to the concerned Contractor, however, petitioners completed the said work which cannot be said to be their fault. It has been further submitted that the concerned contractor having not been paid the said amount preferred a writ petition bearing W.P.(C) No.5920 of 2006 and this Hon''ble Court vide order dated 06.11.2006 disposed of the matter giving liberty to the petitioner to file representation regarding his claim. In pursuance to the order dated 06.11.2006 passed by this Court, on receipt of such representation the respondent no.2 directed to make payment of Rs. 7,70,632/-. In pursuance to the order dated 06.11.2006 passed by this Court, on receipt of such representation the respondent no.2 directed to make payment of Rs. 7,70,632/-. It has further been stated that prior to posting of the petitioners the agreement was entered into between the parties but the liability has been fixed upon the petitioners. Thereafter, the petitioners were issued show cause to which they replied requesting the authorities to exonerate them from the charges. The enquiry committee vide its report dated 17.08.2009 along with covering letter, vide Annexure-11, has admitted that no amount is to be recovered from these engineers posted during the relevant time rather the amount is to be recovered from the Cantonment Board. But, surprisingly the respondent authorities vide order dated 06.01.2010 passed the impugned order whereby excess amount which has been paid to the concerned contractor has been directed to be recovered from the salary of the petitioners. Being aggrieved by the impugned order of recovery, petitioners having no other alternative have been constrained to approach this Court under Article 226 of the Constitution of India for redressal of their grievance. 4. Learned counsel for the petitioner has strenuously urged that without considering the enquiry report the respondent authorities have passed the order of recovery from the salary of the petitioners which is highly arbitrary and is liable to be set aside. Learned counsel for the petitioners further submits that the respondents have passed the order of recovery merely on the basis of show cause, which amounts to major punishment, though the enquiry committee has given the specific finding that excess amount should be recovered from the Ramgarh Cantonment Board, hence it is violative of Article 14 of the Constitution of India. 5. A counter affidavit on behalf of the respondents has been filed, controverting the averments made in the writ application. It has been averred in the counter affidavit that petitioners while working in the District of Ramgarh, Water Supply Scheme has been taken up by the Drinking Water and Sanitation Department as deposit work, as this scheme originally belongs to Ramgarh Cantonment Board under Ministry of Defence, Govt. of India. It is further stated that the officers concerned were allowed to continue the execution of work even when the fund was not available, flouting the provision contained in Circular no.1058 dated 04.08.1999. of India. It is further stated that the officers concerned were allowed to continue the execution of work even when the fund was not available, flouting the provision contained in Circular no.1058 dated 04.08.1999. The enquiry committee submitted its report to the department vide letter dated 11.04.2009 and after following the procedure the petitioners have been found guilty and the department issued Sankalp contained in Memo no.29 dated 06.01.2010 and took a decision for recovery of amount in proportion from alleged employees. 6. In compliance of the order dated 19.07.2017 a supplementary counter affidavit has been filed on behalf of respondent regarding present status, wherein it has been submitted that the Executive Engineer, Drinking Water and Sanitation Division, Ramgarh earlier written a letter dated 26.11.2012 to the Chief Estate Officer, Ramgarh Cantonment Board stating incapability for execution of 2nd phase of work due to overburden. Thereafter, the Ramgarh Cantonment Board wrote a letter dated 12.10.2017 to the Executive Engineer, Drinking Water and Sanitation Division, Ramgarh that Board will pay Rs. 13,33,607/- only after the 2nd phase execution of work. It has further been averred that the department constituted a committee under the Chairmanship of the Chief Engineer (CDO), Drinking Water and Sanitation Department, Government of Jharkhand for assessment of excess work and the committee gave its report that under the said scheme, work executed by Executive Engineers is more than the sanctioned amount, which is against the provision and therefore financial liability has arisen. Thereafter, the respondents issued show cause to the petitioners and after considering reply to the show cause, the respondents have found guilty to the petitioners and therefore, the impugned order dated 06.01.2010 for recovery has been passed. 7. After having heard learned counsel for the respective parties at length and on perusal of the record, the impugned orders dated 06.01.2010 passed by the respondents in respect of petitioners in different writ applications are not legally sustainable, in view of the following facts and reasons: (I) The petitioners at the relevant point of time were working in the capacity of Executive Engineer/Assistant Engineer/Junior Engineer. A tender was floated in the name of Ramgarh Town Water Supply Scheme which got the approval the erstwhile Public Health Engineering Department, Government of Bihar, Patna vide memo dated 26.12.1998 for an amount of Rs. 407.41 lakhs. A tender was floated in the name of Ramgarh Town Water Supply Scheme which got the approval the erstwhile Public Health Engineering Department, Government of Bihar, Patna vide memo dated 26.12.1998 for an amount of Rs. 407.41 lakhs. After technical and administrative sanction, a notice of tender was issued in the year 2002-03 and the lowest tenderer was allotted the work on 15% below by the order of the then Regional Chief Engineer and in terms of the said order the then Executive Engineer has entered into an agreement being Agreement no.F2-8/2002-03. Subsequently, a revised estimate for construction of a check dam was prepared which also got the technical sanction by the order of the Regional Chief Engineer, Ranchi. After completion of the work some amount was not paid to the contractor for which he preferred a writ application being W.P.(C) No.5920 of 2006 and this Court vide order dated 06.11.2006 disposed of the matter with liberty to the petitioner to file representation regarding his claim. Accordingly, the admissible amount was paid to the contractor, but for the reasons best known to the respondent, the liability has been fastened on the petitioners and show cause notice was issued and the matter was enquired into. The enquiry officer has categorically gave a finding that no amount is to be recovered from the engineers posted during the relevant time, rather the amount is to be recovered from the Cantonment Board. It was the categorical finding of the enquiry officer that if any excess payment is made to the contractor, the Cantonment Board is liable to indemnify the same. However, the petitioners have been made scapegoat, even though no omissions/commissions have been made by the petitioners so far as payment to the contractor is concerned. (II) The respondents without dealing with the enquiry report has passed an arbitrary order for recovery from the salary of the petitioners which amounts to colorable exercise of power. The basis on which the impugned order has been passed for recovery from the salary of the petitioners, is bereft of any reasons since the enquiry committee has given a clean chit with regard to involvement of petitioners in the alleged excess payment to the contractor, therefore, any action impinging recovery from the pay of petitioners would be without jurisdiction and authority of law. 8. 8. In view of the reasons stated in the foregoing paragraphs, the impugned order passed by the respondent dated 06.01.2010 pertaining to recovery of the amount being no legally sustainable is quashed and set aside. 9. Resultantly, writ petitions stand allowed.