K R ERRY Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THESE two writ petitions (C. W. No. 504 of 1964 presented by Shri K. R. Erry and c. W. No. 723 of 1965 presented by Shri Sobhag Rai Mehta) were heard together by a Division Bench consisting of S. B. Capoor, J. and myself and were referred to a larger Bench by one order. C. W. No. 504 of 1964, was initially referred to a larger Bench by Shamsher Bahadur, J. on 27-5-1965 and C. W. No. 723 of 1965 was directed by the Hon'ble the Chief Justice (Falshaw, C. J.) on 24-11-1965 to be heard along with C. W. No. 504 of 1964 because the learned counsel for the petitioner had represented that the points arising in the two petitions were identical. This is how these two writ petitions have been placed for hearing before this Bench.

(2.) THE broad facts of the case of Shri K. R. Erry (C. W. No. 504 of 1964) are stated in the order of the learned Single Judge and the facts of both the cases, in so far as their broad features are concerned are given in the order of the Division Bench. I would, however, in a nutshell restate them in essential particulars. The petitioner shri K. R. Erry joined as an Assistant Engineer in the P. W. D. Irrigation Branch in the pre-partition Punjab in November, 1926. He continued to work in that department as a permanent Assistant Engineer and was promoted in due course as an Executive Engineer. While posted as Executive Engineer (Designs) in the central Designs Office, he was asked to prepare a design for me Ghaggar Syphon as also for several other works. The design of the Ghaggar Syphon was completed in 1952 under the supervision and guidance of Shri R. R. Handa, I. S. E. , Chief engineer, Bhakra Canals, and was approved by Shri R. K. Gupta, I. S. E. , Chief Engineer, who held charge of Director, Central Designs, in addition to his duties. After final approval of the design by the highest authorities, the construction of ghaggar Syphon was entrusted to Shri A. S. Kalha, I. S. E. , Superintending engineer, II Bhakra Main Line Circle in 1953-54. The petitioner was not concerned with the construction of the Syphon at the site. In 1954, Bhakra Canals were opened for the first time. After the Ghaggar Syphon started functioning, it was found that a minor portion of the work in the bed and wing wall of river Ghaggar was damaged. On discovery of this defect, the petitioner as Executive Engineer (Designs) was asked to propose repairs to the damaged work. The petitioner's suggestion in regard to these repairs was approved by the Chief Engineer and was carried out at site by Shri A. S. Kalha. Thereafter, there was no complaint of any kind about this work. About five months after the discovery of the damage, Shri lehri Singh, Minister of Irrigation, sent a commendatory letter to the petitioner on 19-9-1954 praising his ability and devotion to duty in preparing designs of various intricate works. At the time of discovery of the defect in the Syphon, the government appointed a Committee of Enquiry consisting of three Chief Engineers pre-sided over by Shri S. D. Khunger, I. S. E. , General Manager, Bhakra Dam. After a thorough investigation, this Committee returned a unanimous verdict that the damage was not due to any fault in design and that it was due to faulty construction. After the report of this Committee of Enquiry, the Government proposed to charge-sheet the Engineers responsible for the construction. At that stage, the Irrigation Minister entrusted this matter to a High Powered Commission presided over by Dulat, J. , a Judge of this Court. In 1955, the petitioner was promoted from P. S. E. Class II to P. S. E. Class I. This promotion, according to the circular of the Government, completely exonerated the petitioner of any blame or blemish whatever and was considered as a hallmark for his efficiency in service. In 1957, the report of the High Powered Commission was received by the government in which it was observed that damage to the Ghaggar Syphon was due to faulty design and not due to faulty construction, thereby completely reversing and negativeing the conclusion of the Committee of Enquiry consisting of three Chief Engineers. In the meantime, Shri R. R. Handa and Shri R. K. Gupta, who had actively participated in the preparation of the design, had retired and had been given their full pension. Faced with this unhappy situation created by the two conflicting reports, one by technically qualified high officers and the other by a judge of the High Court, the Government issued a letter of displeasure to the petitioner regarding the faulty design. On receipt of this letter, the petitioner protested and submitted that no explanation had been taken from him before recording this displeasure. The petitioner was thereupon inform. ed by the Chief engineer, Shri A. C. Malhotra, I. S. E. , that he had consulted the Secretary, irrigation Department, on telephone and was informed that this note was not by way of punishment and that it will not stand in the way of the petitioner's promotion. Indeed, within a few months of this letter, the petitioner was actually promoted to the rank of officiating Superintending Engineer early in 1958 and was posted as Director of Central Designs. The petitioner had also, since 1954, been earning his annual increments regularly up to the date of his retirement which is indicative of the fact that the petitioner's service was fully approved by the government. In November, 1958, the petitioner retired from service on reaching the age of superannuation. Shortly after retirement, he was appointed by the government as a Professor and Head of the Department of Civil Engineering in the punjab Engineering College, Chandigarh which post was held by him for about 16 months. During the five years immediately preceding his retirement from service, the petitioner earned about four promotions described by him in paragraph 19 of the writ petition. After retirement, the question of the pension permissible to the petitioner was taken up by the Government and on 29-7-1963, it was decided to impose a 20 percent cut in his pension and the cut of Rs. 2000/- in his death cum retirement gratuity. It is this order which is challenged in the present proceedings.

(3.) IN the written statement, it is averred that the construction of a Syphon was commenced in May, 1953 and was completed in May, 1954 at a cost of Rs. 19,20,921/ -. The opening ceremony was fixed for 7-7-1954 and water was let in the canal for testing purposes on 13-6-1954. The Syphon was damaged on the night between 16th and 17th of June, 1954. For the rectification and improvement of the original design and restoration of the damage, more than Rs. 7 lacs were spent. Regarding the commendatory letter, it has been averred that the proposal to issue the same to all concerned had been decided before the occurrence of the damage in question. As a result of detailed enquiries, according to the written statement, the damage was found to have been caused because of detective preparation of the design and the petitioner was conveyed strong displeasure of the Government. In regard to the petitioner's promotion to P. S. E. Class I, it is pleaded that this was done on 22-8-1954 when the enquiry was still proceeding, but keeping in view the loss suffered by the Government, the petitioner's confirmation in P. S. E. Class I was postponed for one year. He was of course confirmed as Executive Engineer with effect from 12-5-1956 but this did not exonerate the petitioner of the blame for his failure to prepare a correct and safe design. On the representation of Shri A. S. Kalha and in view of the findings of the high Powered Commission the advice given by the Committee of three responsible officers of the Irrigation Branch was not considered to be correct. Of those three officers, Shri R. R. Handa and Shri R. K. Gupta having since retired, no action could be taken against them and the third officer Shri Khungar had been re-employed as general Manager, in charge of the Bhakra Dam. The Government, however, noted with regret that an officer of Shri Khungar's seniority and calibre should have allowed himself to be influenced by the opinion of his colleagues and should have agreed with them in assigning the damage caused to the Syphon to bad workmanship rather than to defective designing. The matter having become old, it was decided to drop it. The officers responsible for the preparation and approval of the design of the Syphon, however, stood on a different footing altogether and the case of each of the officers was dealt with on its own merits. Shri R. R. Handa, the chief Engineer, and Shri R. K. Gupta. Director Central Designs, who had the overall responsibility could not be fixed with the lapse which attached to the officer mainly responsible for defective designing and that officer was the petitioner who, as executive Engineer, made detailed calculations and prepared the design. Government's strong displeasure based on the findings of the High Powered commission was, however, conveyed to the petitioner and Shri R. K. Gupta. In the return, it has been admitted that the petitioner was informed that the letter of displeasure was not a form of "censure" and as such there was no occasion to follow the procedure laid down in the Punjab Civil Services (Punishment and appeal) Rules, 1952. It is added in this connection that the petitioner's representation was rejected by the Government. In paragraph 17 of the return, it is pleaded that "the promotions to the I. B. are made keeping in view the seniority and merit. The merit is adjudged keeping in view the record of service as a whole and not for a particular year. " This admission procetds on to state that the petitioner had been held up at the efficiency bar for a period of one year with future effect as per Government orders dated 19-12-1953. Full pension admissible under the rules, according to the return, is not to be granted as a matter of course, nor unless the service rendered has been fully approved. Reference is made to Rule 6. 4 of the Punjab Civil Services Rules, Vol. II according to which if the service is not thoroughly satisfactory, the authority sanctioning pension can make such reduction in pension as it thinks proper. It has also been denied that during the last five years of the petitioner's service his work was described as "excellent". The impugned order, it is averred, is just and has not been passed by way of punishment. The Government has made a fair assessment of the petitioner's service for the purpose of sanctioning pension admissible to him under the Rules. Discrimination and violation of Article 14 of the Constitution has been denied. According to the reply, the case was also carefully examined by the standing Committee for cuts and pension consisting of the Chief Secretary (Chairman), Finance Secretary, the Administrative Secretary concerned and the deputy Secretary, General Administration.