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2023 DIGILAW 387 (TS)

Jakkula Ram Prasad v. State of Telangana

2023-06-05

SUREPALLI NANDA

body2023
ORDER: Heard learned counsel for the petitioner and learned Government Pleader for Irrigation and Command Area Development. 2. This Writ Petition is filed to issue a Writ of Mandamus, declaring: (i) the action of the respondents in passing orders in GO.Rt.No.67, Irrigation and CAD (Vigilance) Department, dated 03.01.2018, communicated through the orders of the third respondent in Endorsement No. RC.ENC/SII(1)/H1/16396/2014 dated 11.01.2018 imposing a minor penalty of withholding of one annual increment without cumulative effect as illegal arbitrary and unconstitutional being in violation of article 14 and 16 of the Constitution of India; (ii) Consequently set aside the orders passed by the 1strespondent vide GO.Rt.No.67, Irrigation & CAD (Vigilance) Department, dated 03.01.2018 communicated through the orders of the 3rd respondent in Endorsement No. RC.ENC/SII(1)/H1/16396/2014 dated 11.01.2018 imposing a minor penalty of withholding of one annual increment without cumulative effect; (iii) Further direct the respondents to drop all further proceedings pursuant to the charges framed GO.Rt.No.675, I &CAD (Ser.VII) Department, dated 09.06.2010 as has been done in the case of Shri K R Chander Rao, vide orders passed in GO.Rt.No.17, Irrigation & CAD (Vigilance)Department dated 03.01.2018. 3. The case of the Petitioner, in brief, is as follows: a) Petitioner has been appointed as Assistant Executive engineer vide proceedings number. RC/ENC/D1/35232/97-212 dated 18.05.2004 and allotted to irrigation and CID department and was first posted to GVC-2, SRSP-CADA, Jagityal on 26.05.2004 and charges were framed against the petitioner and 80 other officials in the Irrigation Department alleging that the payments have been made to private contractors for works which were not executed at all or by recording excess measurements then the works actually executed. b) Inspection team was constituted by the government and the team carried out inspections of 5810 works for which administrative/technical sanctions were recorded involving an amount of Rs. 281.45 crores and thereafter the matter was interested to GA(V&E) department for an “in-depth enquiry” and the vigilance department is said to have Inspected a total of 81 works. Based on the report of GA (V and E) Department disciplinary action against the 80 officers was initiated and the petitioner was working only as an AEE then. 281.45 crores and thereafter the matter was interested to GA(V&E) department for an “in-depth enquiry” and the vigilance department is said to have Inspected a total of 81 works. Based on the report of GA (V and E) Department disciplinary action against the 80 officers was initiated and the petitioner was working only as an AEE then. c) Charges were framed against the petitioner vide GO.Rt.No.675 of Irrigation & CAD (ser.VII (V&E) A1) dated 09.06.2010 against the alleged misconduct set out in the Statement of Articles of charges and the petitioner submitted his written statement of defence dated 25.01.2018 denying any and all allegation’s of misconduct against the petitioner. d) A common enquiry was conducted to inquire against all the eight officers charge sheeted and orders were issued, appointing the Inquiry Authority vide GO.Rt.No401 dated 31.03.2012 to enquire into the charges framed against the 80 officers listed and the Petitioner fell at serial number 33 in the said list. e) After a prolonged enquiry and receiving written arguments from several defending officers the enquiry officer, vide report dated 16.11.2013, held that all the charges against the officer were proved and the charge framed against the petitioner is that he has recorded work in excess of what has been executed. The specific allegation against the petitioner is that he had recorded an item in the materials book as H Girder, and the enquiry officer had taken stand that there is no H Girder. f) H Girder was not available in the market during the period and C-sections were utilised as they were nearest components to H Girders since C-sections were much stronger than H Girder and were expensive. Further there were circular instructions that whenever particular components were not available the components which are closest as possible in specifications may be utilized and hence there was no fault of the petitioner. g) Moreover the contractor had remitted an amount of Rs.74,750 which was an alleged loss caused on account of utilization of C-section instead of H Girder. h) The above mentioned pleas had been rejected totally ignoring a comparative statement with respect to relative constitutions of the H Girder and C-section. i) Report had been submitted by the enquiry officer on 16.11.2013 that the charges against all 80 officers as proved was pending consideration by the government. h) The above mentioned pleas had been rejected totally ignoring a comparative statement with respect to relative constitutions of the H Girder and C-section. i) Report had been submitted by the enquiry officer on 16.11.2013 that the charges against all 80 officers as proved was pending consideration by the government. While the matter stood thus the petitioner was promoted temporarily to the post of Deputy Executive Engineer vide PROC.NO.RC/ENC/B3/15021287/2015-10, dated 19.12.2015 and this promotion to the petitioner was imposed with a condition that the ad-phoc promotion will be cancelled at any time in case punishment orders are issued in respect of charges pending against the petitioner and the petitioner has been functioning as a DEE till date. j) Orders have been passed vide G.O.Rt.No.67 I&CAD (Vigilance) department dated 03.01.2018 and served on the petitioner through Endorsement No. RC. ENC/SII(1) 16393/2014 dated 11.01.2018 imposing a Minor Penalty of withholding One annual grade Increment, without cumulative effect. k) The case of Chander Rao who is functioning as deputy executive engineer in division five of GVC-1 SRSP was fourfold and identical to that of the petitioner. Despite being same charges, charges against Chander Rao were dropped vide GO.Rt.No.17 Irrigation & CAD (Vigilance) Department 03.01.2018 and the petitioner was imposed with penalty though there was no financial loss and no irregularity caused and despite the amount of loss being remitted. l) In the year 2010, when charges were framed against the petitioner the government had promoted several officers including those who are juniors to the petitioner and denying the petitioner promotion on the ground of the pendency of the enquiry and with this punishment the petitioner is being denied to be considered for promotion for one more year. m) Petitioner requested that since the objective of imposing the penalty of withholding of penalty is to cause a monetary loss to the employee concerned that he may be given an option of remitting the amount equivalent to the monetary loss that was cost to the respondent organisation pending his representation. Hence, the Writ Petition is filed. 4. The Counter Affidavit filed by Respondent No.2, in brief, is as follows; a) Respondents deny all the allegations mentioned by the petitioner, in petitioner’s affidavit. Hence, the Writ Petition is filed. 4. The Counter Affidavit filed by Respondent No.2, in brief, is as follows; a) Respondents deny all the allegations mentioned by the petitioner, in petitioner’s affidavit. b) It has been brought to the notice of the government that certain irregularities are noticed in the works taken up under O and M grant in SRSP stage-I during the year 200708, 2008-09 and 2009-10 and a departmental action was initiated against the officers responsible and inspected 230 works out of 5810 works for which administrative/technical sanctions were accorded and the matter was entrusted to GA (V&E) Department for an in-depth enquiry into the matter and the vigilance and enforcement department at random selected 81 works and submitted its report vide (Vigilance Report No.13 (1227/V&E.1/09) dated 05.02.2010 and found irregularities and recommended to initiate action against 81 engineers involved in the above as the charges are held rude against them and the petitioner is one among them. c) After careful consideration of the available material on record as per the findings of vigilance and enforcement department articles of charges were issued against the petitioner vide GO.Rt.No.675, Irrigation & CAD (Ser.VII(V&E)A.1) Department, dated 09.06.2010. d) Vide D.O.Letter.No.111/COI-KSR/2012 dated 16.11.2013, the enquiry report of the enquiring authority was communicated to the petitioner along with other officials involved in the case vide Government Memo.No.3697/Ser.VII(V&E.1)/2012-42, dated 23.12.2013 and petitioner was asked to submit his explanation within 15 days from the date of receipt of the memo and the petitioner had submitted his explanation to the government. e) Based on the enquiry report a penalty of 3% cut in pension for a period of five years was proposed by the government wide government memo memo.NO.6397/Vig.A2/2010-67 dated 03.01.2018 and a minor punishment of withholding one annual grade increment without cumulative effect was imposed on the petitioner vide GO.Rt.No.67, I&CAD (Vigilance) Department, dated 03.01.2018. f) The petitioner was working as an Assistant Executive Engineer who is responsible for execution of work as per approved estimate and record the measurements as per actual execution of the work but whereas K.R. Chander Rao was working as Deputy Executive Engineer whose responsibility is to check 25% of the work recorded by Assistant Executive Engineer. g) Disciplinary action against both the officers was based on the same vigilance and enforcement report. g) Disciplinary action against both the officers was based on the same vigilance and enforcement report. The work executed by the petitioner is mechanical work whereas the works executed by K.Chander Rao are civil works. h) The charge against K.Chander Rao is about change in place of execution of work and quality of the work executed but whereas the charges framed against the petitioner are completely different and hence the contention of the petitioner is not correct as the circumstances vary from case to case and the nature of the work executed. i) Vide GO.Rt.No.51, I&CAD (Ser.I) Department dated 02.02.2015, the screening committee has been constituted and reviewed the cases of different assistant executive engineers for adhoc promotion to the post of deputy executive engineer. j) Government has directed to consider the case of assistant executive engineers against whom charges are pending for ad hoc promotion to the post of deputy executive engineer in terms of GO.Ms.No.257, GAD(Ser.C) Department, dated 10.06.1999 and after verification and taking into consideration Rule 10(a) of APSC Rules, 1996 and on the representation of the petitioner, the petitioner was temporarily promoted as Deputy Executive Engineer vide Proceedings No/RC/ENC/B3/15021287/2015-10 dated 19.12.2015 on a condition that ad hoc promotion now ordered will be cancelled at any time without issuing notice in case any punishment orders are issued in the respect of charges pending against the petitioner and that the Ad-hoc promotions are subject to directions and outcome of cases if any pending before the courts and the petitioner had been informed about the same. k) The disciplinary action was initiated on the same V&E report and same enquiry officer has conducted the enquiry and same disciplinary authority has concluded the disciplinary action and there are no similar circumstances, as circumstances varied from work to work, cadre to cadre and type of misconduct and the other higher officials involved in the same work were also proposed for punishment of 3% cut in pension for 5 years. l) The Petitioner states C-channels has more weight and in turn costs more and as such there was no benefit to the contractor but also states that the contractor has remitted an amount of Rs. 74,750/- as per the assessment of V&E report which shows that, excess amount was paid to the contractor. l) The Petitioner states C-channels has more weight and in turn costs more and as such there was no benefit to the contractor but also states that the contractor has remitted an amount of Rs. 74,750/- as per the assessment of V&E report which shows that, excess amount was paid to the contractor. m) The remittance of the amount has reduced the loss sustained by the Government and the punishment of one increment without cumulative effect imposed on the petitioner vide GO.Rt.No.67 I&CAD (Vigilance) Department, dated 03.01.2018 is given for recording excess measurement and causing loss. n) The Petitioner’s appeal is under examination of the Appellate Authority and the contention of the petitioner, that the petitioner doesn’t have effective mechanism is not correct, as the petitioner had preferred an appeal to the 1st respondent against the punishment imposed by the 1st Respondent. Hence the Writ Petition is devoid of merits and is liable to be dismissed. PERUSED THE RECORD 5. The order impugned of the 1st respondent vide G.O.Rt.No.67, dated 03.01.2018, in particular, para 5 reads as under: 5. After examination of the entire matter, it has been decided to impose a punishment of withholding of one annual grade increment without cumulative effect against Sri J.Ram Prasad, the then AEE Sub Division No.2, Division No.2GV –IV, Dharoor Camp, Jagityal. Accordingly, Government hereby impose a punishment of withholding of one annual grade increment without cumulative effect against Sri J.Ram Prasad, the then AEE, Sub Division No.2, Division No.2, GVC-IV, Dharoor Camp, Jagityal, In respect of the allegations of irregularities noticed in the works taken up under O&M grant in SRSP stage-1 during the years 200708, 2008-09 and 2009-10. 6. Counter affidavit filed by the 2nd respondent, in particular, paras 18 to 21 read as under: “18. Even though the disciplinary action was initiated on the same V&E Report and same Inquiry Officer has conducted the enquiry and same disciplinary authority has concluded the disciplinary action, there are no similar circumstances as the circumstances varied from work to work, cadre to cadre and type of misconduct. Even though the disciplinary action was initiated on the same V&E Report and same Inquiry Officer has conducted the enquiry and same disciplinary authority has concluded the disciplinary action, there are no similar circumstances as the circumstances varied from work to work, cadre to cadre and type of misconduct. Hence, the contention of the petitioner that "he was awarded with the punishment impugned and on the other hand dropping of further action against some of the officers who were held guilty of very serious allegations by the same Inquiry officer is in violation of Principles of natural justice" is not correct as each case vary’s from each other and the other higher officers involved in the same work, they were also proposed for punishment of 3% cut in pension for 5 years for which a show cause notice was issued by the disciplinary authority calling for explanations. 19. In reply to Para 19: It is respectfully submitted that, the petitioner has stated that, he has executed 'C' Channels instead of "H" girders for quantity of 16 Rft. The petitioner on one hand states that 'C-channels has more weight and in turn costs more and as such there was no benefit to the contractor' and on the other hand he states that 'the contractor has remitted an amount of Rs 74,750/-as per the assessment of V&E report' which itself shows that there is excess amount that was paid to the contractor. The petitioner has recorded the above quantity of 16 Rft also as H-Girder (as per sanction) whereas the measurements shall be recorded as per actual execution at site, subject to prior approval of deviation from the competent authority. 20. Further, it is submitted that the remittance of the amount has obviated the loss sustained by the Government and the punishment of one increment without cumulative effect imposed on the Petitioner vide G.O.Rt.No.67, I & CAD (Vigilance) Department, dated 03.01.2018 is given for recording excess measurement and causing loss to the Government funds. 21. 20. Further, it is submitted that the remittance of the amount has obviated the loss sustained by the Government and the punishment of one increment without cumulative effect imposed on the Petitioner vide G.O.Rt.No.67, I & CAD (Vigilance) Department, dated 03.01.2018 is given for recording excess measurement and causing loss to the Government funds. 21. In reply to para 20 and 21: It is respectfully submitted that the petitioner’s appeal is under examination of the Appellate Authority i.e. at Government level.However, the contention of the petitioner that he does not have any effective mechanism as the punishment was imposed by the 1st respondent to whom he has submitted his appeal is not correct at this juncture as the petitioner has been given an opportunity to prove himself not guilty on the grounds which were earlier not placed before the inquiring authority or disciplinary authority and it is submitted that the appeal made by the petitioner is under examination by the Government.” DISCUSSION AND CONCLUSION 7. This Court takes note of the fact that the order impugned of the 1st respondent vide G.O.Rt.No.6 is dated 03.01.2018 and it pertained to irregularities alleged to have been committed by the petitioner during the year 2007/08, 2008-09 and 2009-10. It is the case of the petitioner that the petitioner was appointed as Assistant Executive Engineer vide proceedings dated 18.05.2004 and allotted to Irrigation and C.A.D. Department and while the petitioner was working at Dharoor Camp at Jagtial certain charges were framed against the petitioner along with 80 other officers in the irrigation department alleging that in the execution of work pertaining to the department payments have been made to the private contractors for works which were not executed at all or by recording excess measurements than the works actually executed. It is the specific case of the petitioner that the allegations levelled against the petitioner vide G.O.Rt.No.675, dated 09.06.2010 that the petitioner recorded excess measurement in a project pertaining to S and F of S.G. Shutters, Escape Regulator to D.63 of Kakatiya Canal and vide G.O.Rt.No.401, dated 31.03.2012, the Commissioner of Inquiries had been appointed to conduct a common enquiry against 80 officers vide cheque dated 27.06.2012 and the contractor had in fact, remitted the alleged excess amount. 8. 8. Factually, it has been accepted that a C section was utilised instead of a H Girder, by the Agency.The petitioner’s defence is that C section was more expensive and stronger than H Girder and that since H Girder was not available, the Agency has utilised C section for timely completion of work.It is the further specific case of the petitioner that without rendering any finding with regard to the relative merits of disadvantages, on the singular account that there was no H Girder, it has been held that charge was proved against the petitioner.The petitioner further pleads discrimination and contends that in cases of higher officers who were subjected five charges of similar nature and alleged to have caused a loss of Rs.6.68 lakhs, proceedings have been dropped while curiously petitioner was penalised on the ground that Rs.075 lakhs loss had been caused, though there was no actual loss. 9. The petitioner had been promoted as Deputy Executive Engineer vide proceedings No. Rc./ENC/B3/15021287/2015-10, dated 19.12.2015. The petitioner vide his detailed representation dated 24.01.2018 appealed to the 1st respondent herein to reconsider the decision of punishment dated 03.01.2018 imposed against the petitioner duly taking into consideration the petitioner’s written statement of defence submitted to the disciplinary authority duly denying all the charges alleged against the petitioner and further explained that there were no excess measurements, and there was no misconduct or misbehaviour on petitioner’s part, nor the petitioner involved in acts leading to loss to the Government and that as the specified steel elements were not available in the market, alternative sections were permitted and used on the work so as to complete the work in time and the weights of specified steel sections and modified sections were almost the same. 10. 10. This Court taking into consideration the specific averments made in the counter affidavit filed by the 2nd respondent (referred to and extracted above) that the petitioner’s appeal is under examination of the Appellate Authority that is at Government level, and therefore, this Court opines that without going into the merits and de-merits of the case, and in view of the fact that it is specifically stated at para 21 of the counter affidavit that the appeal made by the petitioner is under examination by the Government, the 1st respondent is directed to consider the petitioner’s appeal dated 24.01.2018 which was received and acknowledged by the 1st respondent on 25.01.2018, duly re-considering the petitioner’s statement of defence dated 29.07.2010 and the written arguments submitted by the petitioner to the Commissioner of Enquiry, Hyderabad in response to COI Notice No.111/COI.KSR/2012, dated 21.02.2013 and also the fact as borne on record that the order impugned of the 1st respondent vide G.O.Rt.No.67 is dated 03.01.2018 and it pertained to irregularities alleged to have been committed by the petitioner during the years 2007-08, 2008-09, and 2009-10, i.e. after a long delay of more than seven years, within a period of three weeks from the date of receipt of this order and pass appropriate orders in accordance to law, in conformity with principles of natural justice and communicate the decision to the petitioner.However, there shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.