RAJ KUMAR MEHROTRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner seeks quashing of an order of the State Government, dated 22.1.2000, by which he has been awarded punishments of (i) Censure to be entered in his ACR for the year 1989 -90; (ii) Withholding of promotion for seven years and (iii) Recovery of Rs. 5 lacs from his salary or pension etc. if required. Copy of the said order dated 22.1.2000 of the Water Resources Department, is Annexure 5 to the writ petition. The petitioner further seeks quashing of the consequential communication of the Accountant General, Bihar dated 16.2.2000 directing the Treasury Officer, Patna to recover the said amount in instalments from his salary, and, if such recovery is not possible during his service tenure from his pension and gratuity on retirement. The petitioner also seeks quashing of notification contained in Memo no. 423 dated 20.4.2000 posting him as Executive Engineer in the Minor Irrigation Department. According to the petitioner the said order amounts to reduction in rank because at the relevant time he was posted as Superintending Engineer. Copies of the said communication/notification dated 16.2.2000 and 20.4.2000 are Annexures 7 and 8 to the petition.

(2.) THE factual background of the case, so far as relevant, may be briefly stated as under. The work of excavation of the Swarn Rekha Left (Main) Canal at Chandil between K.Ms. 22.555 and 32.308 was allotted to one M/s Bhasin Associates Private Limited (BAPL) under an agreement dated 1.11.85. The contractor could not complete the allotted work within the stipulated period. The contract was rescinded by the then Executive En - gineer at a joint meeting held on 20.8.88. The contractor was allowed to go in for arbitration with option to the Department to appoint another contractor(s) without any objection by the BAPL. The case of the petitioner is that pursuant to the decision at the said meeting final measurement of the work done by M/s BAPL was taken by the Junior Engineer, duly checked by the Assistant Engineer as well as the Executive Engineer. The result of the measurement was accepted by M/s BAPL and in token thereof the Executive Engineer signed Abstract of the Cost of the final bill. The payments however were kept in abeyance in the light of decision taken at the meeting held on 20.8.88, in view of the proposed arbitration. The left over work after rescission of the contract with M/s BAPL was allotted to three contractors namely M/s Himachal Construction, Jamshedpur, M/s Alok Coal Agency, Ranchi and M/s Indian Builders, Jamshedpur. The dispute in the present case relates to work allotted to M/s Indian Builders (hereinafter called 'the Contractor '). Agreement with the said contractor was executed on 24/29.12.88. The value of the work was Rs. 128.92 lacs. As per the agreed schedule the contractor was to execute the work of the value of Rs. 25 lacs every month. Pre work level of the canal was taken at site by a team of three Junior Engineers, the Assistant Engineer Incharge and Officers of the Quality Control Wing on behalf of the Department and the contractor. The levels were duly recorded in the Level Book. In January 1989 the contractor submitted bill for Rs. 24.47 lacs. The Executive Engineer issued certificate of completion of work to the tune of Rs. 25 lacs on 6.2.89. On account of nonavailability of fund, however, payment was not released. The work nonetheless continued in the succeeding month i.e. February 1989. On 2.3.89 the petitioner assumed charge of the Division as Executive Engineer. The contractor submitted an up to date bill for Rs. 59.60 lacs on 17.3.89. The Junior Engineers took measurement at site, the Assistant Engineer Incharge after checking presented the bill to the tune of Rs. 42.97 lacs. After verification by the petitioner the bill was passed for Rs. 40.42 lacs. On receipt of fund from the Government against the bill, Rs. 33.14 lacs was released for payment to the contractor in April 1989. In this manner it is stated that till January 1991 four bills in all amounting to Rs. 61.28 lacs were passed and paid to the contractor. The contractor was further paid Rs. 3.40 lacs with respect to his 5th 'on account ' bill. Thus Rs. 64.68 lacs was paid to the contractor. The petitioner remained posted in the concerned Division up to 16.1.91 when he made over charge of the post.

(3.) THE case of the Department is that the then Executive Engineer -predecessor in office of the petitioner -had signed the Abstract of cost of the bill and entered into agreement with M/s Indian Builders without verifying the pre -level site. It is said that the level at which M/s BAPL left the work and level at which M/s Indian Builders commenced the work, should have tallied. In other words, the post -level of M/s BAPL should the same as the pre -level of M/s Indian Builders but from the record it appeared that final bill of M/s BAPL (35th Bill on account) was framed on the basis of average level. The final bill was finalised by the predecessor of the petitioner in October 1989 with a direction to the subordinates to prepare the pre -levels of the remaining work which shows that the so called final bill (35th bill on account) of BAPL was not in conformity with the guidelines. Without thus verifying and recording the pre -levels the work order was issued to M/s Indian Builders in December 1988 itself. The mobilization advance was also paid. The Contractor started excavation work and, as per the record, submitted bill for Rs. 24,47,585.95 in February 1989. After the petitioner assumed charge of the Division on 2.3.89 he entered into agreement with the other contractor M/s Alok Coal Agency, to which part of the left over work was - allotted and issued work order. On receipt of complaints the matter was enquired into by. the Cabinet (Vigilance) Department as also the Water Resources Department. The reply to the show cause notice submitted by the petitioner was examined by a Three -Member committee constituted by the Chief Engineer on 14.12.93. The report of the Committee dated 18.12.96 was referred to the Flying Squad for scrutiny. A fresh show cause notice was issued along with chargesheet on 11.5.99. On examination of the show cause submitted by the petitioner and the records, he was found guilty of the charges mentioned in the impugned orders and accordingly awarded punishments.