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2018 DIGILAW 195 (JHR)

Ram Chandra Ram v. State Of Jharkhand

2018-01-23

S.N.PATHAK

body2018
JUDGMENT S N Pathak, J. – The petitioner has approached this Court with a prayer for a direction upon the respondents for quashing the Letter No. 5401 dated 03.05.2017(Annexure-11) issued under the signature of respondent No. 5 (DIG, ACB) to respondent No. 2 (the Secretary, Rural Works Department), within the meaning of Clause 21 (vi) of the Cabinet Vigilance Circular dated 07.08.2015 (Annexure-7) whereby and whereunder, in mechanical and arbitrary exercise of power and further after taking substantive decision to lodge an FIR on the basis of belated Enquiry Report dated 02.09.2016 in connection with P.E. No. 03/09 dated 07.03.2009, an empty communication has been made seeking opinion over the same which is pre-decisive, illegal, abritrary and above all in utter violation of clause 21 (v) r/w Clause 21 (viii) of the aforesaid circular, wherein firstly it is mandated that life for P.E. Shall be three months without specific extension and secondly, before taking any decision to lodge the FIR, ample opportunity of explanation shall be given to the alleged/affected persons. Further prayer has been made for quashing the ex parte Enquiry Report, dated 02.09.2016 (Annexure-10), so far it relates to petitioner, whereby after 8-9 years of the execution of the works in question, meager loss amount i.e. less than 10 % has been sought to be saddled jointly on the Contractor, Executive Engineer, Junior Assistant Engineer, including petitioner. Further prayer has been made to declare and hold that since the entire impugned exercise of so called enquiry between 13.06.2016 to 17.06.2016, report thereof dated 02.09.2016 and the follow up impugned order dated 07.08.2015 are ex facie, illegal, arbitrary and unconstitutional being hit by vices of mala fide in law. 2. The short facts in narrow compass is that the petitioner was posted in R.E.O. Works Sub- Division(now RWD), Deoghar as Assistant Engineer in the year 2006. While being posted there, certain works of rural roads were carried out under the said division, out of the State Sponsored Scheme, namely Babhangama REO Road to Tangidih (2.25 KM), Karma Pakki Road to Mohlidih Barmasiya(5.25 km), REO Road Diba to Mishradih (6.8km ), Deopahari to Manigarhi Road (7.5km) and Kenkhapra main road to satpahari via Sinhani (6.45 km), for which, due tender etc. was floated and the constructions of the said roads were carried out successfully at the relevant time strictly in terms with the sanctioned estimate and other prescribed stipulations thereunder. was floated and the constructions of the said roads were carried out successfully at the relevant time strictly in terms with the sanctioned estimate and other prescribed stipulations thereunder. Since the aforesaid roads fell under the jurisdiction of the petitioner, who was the Assistant Engineer, have supervised the work followed by preparation of measurement books etc. strictly in terms with scheduled quality and quantity, which was duly supervised by the Executive Engineer and the Superintending Engineers, besides all the Officers of the NABARD etc. and after due satisfaction, bills were being passed and payments were being released in favour of the Contractors. On the basis of a complaint made to the Government in the year 2009, with respect to construction of aforesaid roads, the Secretary, Rural Works Department referred the matter to the Secretary, Ministerial Secretariat and Vigilance, Govt. of Jharkhand vide letter dated-20.02.2009 for vigilance enquiry of roads constructed under the Deoghar and Pakur, Division in the tenure of Incharge, Executive Engineer, namely Paras Kumar and Rajdeo Singh respectively, enquired into. Thereafter, one team was constituted under the then Superintending Engineer, Vigilance namely Sri Sohan Seth to be carried out in supervision of Dy. S.P., Vigilance, Jharia, Kujur, which conducted physical enquiry of all the roads between 15.04.2009 to 22.04.2009, but, since no adverse was found, no report was submitted, as such, but out of vengeance, the respondents have constituted three different Committees vide letter dated 28.04.2014, which ultimately conducted the impugned physical enquiry and prepared the report dated 02.09.2016, which is impugned in this writ application. It has been stated and submitted that vide letter dated 03.05.2017, the D.I.G., Anti Corruption Bureau has written a letter to the Secretary, Rural Works Department seeking formal opinion with respect to lodging the F.I.R. against the petitioner and others after taking substantive decision to lodge the same as per Annexure-11. It has further been stated that on perusal of the aforesaid letter, it would be evident that the same has been issued with reference to Cabinet Vigilance Circular, dated 07.08.2015,wherein, a detailed guideline for conducting the preliminary enquiry and purported action thereof has been defined. It has further been stated that on perusal of the aforesaid letter, it would be evident that the same has been issued with reference to Cabinet Vigilance Circular, dated 07.08.2015,wherein, a detailed guideline for conducting the preliminary enquiry and purported action thereof has been defined. It has further been reiterated that even as per the aforesaid circular/guidelines before taking any decision over the preliminary enquiry report (Annexure-10 to the writ petition), the respondents Vigilance Bureau/Anti Corruption Bureau was under obligation to issue show cause notice to the petitioner and all other alleged persons affording an opportunity of explanation, but without issuing such notice/show cause in terms of Clause 21 (V), the aforesaid decision dated 03.05.2017 has been taken. 3. Being aggrieved and dissatisfied with the impugned order dated 03.05.2017 as well as ex parte enquiry report, dated 02.09.2016, the petitioner in the instant writ application has been constrained to knock the door of this Court under Article 226 of the Constitution of India for redressal of his grievances. 4. Learned counsel for the petitioner submits that the impugned order dated 03.05.2017 (Annexure 11) is pre-decisive in nature and in violation of Clause 21 (V) of the Vigilance Department Circular No. 1623 dated 07.08.2015 (Annexure 7) that mandates any enquiry report will be first supplied, if it is adverse then any opinion shall be affected. Learned counsel for the petitioner has submitted with vehemence that the impugned action on the part of the respondents in resorting to spot verification-cum-inquiry proceeding with respect to rural roads work executed more than 8 to 9 years back during their tenure, is absolutely arbitrary, non-est, mala fide and illegal. Learned counsel for the petitioner further submitted that the impugned enquiry is without jurisdiction and the whole action is further barred by Defect Liability Limitation, since as per the binding terms of N.I.T. No. 03/2006-07 and statutory contract/Agreement thereof; there is defect liability period of five years only, which would be manifested from Clause-26 of N.I.T. and Clause-16 of the Agreement. It has been further submitted that after expiry of Defect Liability period of five years, the Roads were duly inspected by the concerned Dumka Circle and Deoghar Division Officers'' i.e. by Superintending Engineer and the Executive Engineer in 2012 and being satisfied with the construction and condition of Road, the Security and Earnest Money kept reserved, had been also released in favour of the Contractor. Learned counsel has further submitted that Clause 21 (viii) of the circular No. 1623, dated 07.08.2015 of the Cabinet Vigilance postulates that preliminary enquiry shall be concluded within three months, but the subject preliminary enquiry once concluded has been sought to be reopened after nine years and therefore, the same exercise is in utter violation of the principles of natural justice and on that score alone, the enquiry report in question, is a nullity and non-est in the eyes of law. In support of his contentions, learned counsel for the petitioners has referred to the decision of the Hon''ble Apex Court rendered in the case of SMD Kiran Pasha Vs. Govt. Of Andhra Pradesh & Ors. , (1990) 1 SCC 328 . 5. No counter affidavit has been filed on behalf of the respondents. However, learned counsel appearing on behalf of the respondents very fairly submits that issues involved in this writ petition have already been decided by a co-ordinate Bench of this Hon''ble Court in its judgment delivered on 19.12.2017 in W.P.(S) No.6314 of 2016 & W.P.(S) No. 4056 of 2016 and since the Hon''ble Court has dismissed the said writ application, this case may also be dismissed in view of the observations made in W.P.(S) No.6314 of 2016 & W.P.(S) No. 4056 of 2016. 6. After hearing the learned counsel for the respective parties and on perusal of the records, this Court is not inclined to interfere and accede to the prayer of the petitioners as the similar issue fell for consideration before this Hon''ble Court in W.P.(S) No. 6314 of 2016 and W.P.(S) No. 4056 of 2016 vide its order dated 19.12.2017 and a co-ordinate Bench of this Hon''ble Court was of the view that :- (i) Admittedly, the aforesaid writ applications have been filed for quashing the enquiry report, dated 02.09.2016, whereby some deficiencies and irregularities have been found in the said report, basing on which the respondents have moved to take coercive action by lodging F.I.R. as well as other consequential action. If on the basis of the said inquiry report, any F.I.R. is lodged , then the petitioners could have the remedy to challenge the same before the appropriate Forum. If on the basis of the said inquiry report, any F.I.R. is lodged , then the petitioners could have the remedy to challenge the same before the appropriate Forum. So far as the enquiry report dated 02.09.2016 is concerned, indisputably, no departmental proceeding has since been initiated basing on the impugned enquiry report and unless any disciplinary proceeding is initiated and the petitioners are subjected to any evil or civil consequences, this Court under apprehension/presumption of the petitioners ought not to interfere in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, because it is too early, rather premature to tinker with the enquiry report dated 02.09.2016, unless, the rights of the petitioners being Government servants are adversely affected by any evil or civil consequences. Though, this Court would not like to interfere with the consequential action on the impugned enquiry report, but, if any future action would be taken by the respondents on the basis of the Vigilance Circular No. 1623, dated 07.08.2015, annexed as Annexure-7 to the I.A. No. 2631 of 2017, the petitioners shall be afforded reasonable opportunity, as enshrined in the aforesaid Circular, therefore, in the fitness of things without dwelling upon the nitty-gritty of the factual and legal aspects on the impugned enquiry report, interest of justice would be met, if a direction is issued to the respondents to take action in the event any action would be proposed to be taken basing on the enquiry report, the same be done after affording reasonable opportunity of hearing to the petitioners and in accordance with law. 7. In the instant case, the impugned Letter dated 03.05.2017(Annexure-11) is also under challenge. The said impugned letter is issued by the Deputy Inspector General of Police, ACB whereby, he has sought opinion from the Secretary, Rural Works Department to lodge FIR against the alleged persons including the petitioner, within 30 days. There is no illegality or infirmity in the said impugned letter and no interference is warranted. 8. As a cumulative effect of the aforesaid judicial pronouncement, rules, guidelines and observations, I do not find any merit in instant case. Resultantly, this writ petition stands dismissed.