DEBASHIS MAHAPATRA SON OF LATE KISHORE MOHAN MAHAPATRA Vs. JHARKHAND URJA VIKAS NIGAM LIMITED, (JHARKHAND)

JUDGEMENT

(1.) The solitary question, which arises for consideration by this Court in this writ petition (Cr.), is as to whether the State or the State authority concerned-the Electricity Board has any power of review in the matter of grant of sanction in terms of Section 197 of the Code of Criminal Procedure, 1973 (in short "the Code").

(2.) The facts of the case, which is relevant for the purposes of consideration of the above question, in short, is that at the instance of the Secretary of the Jharkhand State Electricity Board, an F.I.R. was instituted on 20.01.2011 being Vigilance P.S. Case no. 02 of 2011 with the allegation that the Electrical Executive Engineer namely Sri. P.K. Sinha, the Financial Controller namely Sri. Umesh Kumar and other responsible officers posted in the Jharkhand State Electricity Board have misused their official position and committed irregularities in APDRP Project under Package 'D' for Jamshedpur vide work order no. 28/APDRP-64 and 29/APDRP-64 dated 27.01.2005. Accordingly, the F.I.R. was lodged under Sections 409, 420, 467, 468, 471, 477 and 120-B of the I.P.C. and also under Sec. 13(ii) read with Sec. 13(i)(c) and (d) of Prevention of Corruption Act. The further allegation in the said F.I.R. was that Jharkhand State Electricity Board issued Notice Inviting Tender (TIN) for undertaking work under the Accelerated Power Development and Reforms Programme (in short "APDRP) under Package 'D' for Jamshedpur town stipulating therein that the work would be required to be completed within time schedule and that the price quoted by the bidder shall not be subjected to variation on any account. Making it further clear that no escalation in prices shall be admissible on any account to the bidder. Same clauses were reiterated when the work orders were issued to M/s. Ramji Power Company Limited (in short M/s. RPCL) and even in the agreement entered into between the JSEB and M/s. RPCL, it was the part of the terms and conditions but as M/s. RPCL could not execute the work within the stipulated period i.e. before 26.09.2005, it was extended to 31.07.2007 without putting any clause for escalation of price but with imposition of liquidated damages. M/s. RPCL agreed to that proposal and assured that the work would be completed within the extended time and the Company will not go for any arbitration. It is also alleged that when the said M/s. RPCL contrary to its promise did not even start the work by 31.07.2007, the then Chairman, JSEB directed the Chief Engineer, APDRP to put up an agenda for termination of contract of M/s. RPCL in the next meeting of the Board of JSEB. Accordingly, the Chief Engineer, APDRP put up the agenda before then Member (Technical), JSEB, who in connivance with the other accused, held back the concerned file till the transfer of the then Chairman, JSEB. It is also alleged that P.K. Sinha, the then Electrical Executive Engineer, APDRP, put notice in the file for appointment of Arbitrator and for waiver of penalty after having approval of the Chairman. Where after the Arbitrator was appointed, who after hearing the parties gave Award. Pursuant to that, payments were made to M/s. RPCL but when it was detected that grave financial irregularities have been committed in making payments to the said company by adopting malpractices. The officers conspired and never placed the said agenda rather P.K.Sinha, Electrical Executive Engineer, APDRP, placed the file for appointment of an Arbitrator, waiver of penalty and extension of time and the Arbitrator gave award in favour of M/s. RPCL. Pursuant to that, the Board had paid a sum of Rs. 10.87 Crores. The said Executive Engineer P.K.Sinha with malafide intention deliberately suppressed the fact that implementation of award will have financial impact of additional Rs. 11 Crores approximately and the amount was paid on the order of Financial Controller-III though he had no authority to pass the order for making the payment of more than Rs. 3 Crores rather the said authority was lying with the Member (Finance) or the Chairman, JSEB. It is also alleged that the total cost of the Project was Rs. 33.13 Crores and against that, the work done including the cost of materials were worth Rs. 19,85,08,406.00 but the said Firm was paid Rs. 28,90,95,479.00 and thereby a sum of Rs. 9,05,87,073.00 has been paid in excess.

(3.) After investigation, the charge-sheet was submitted against the accused persons including this petitioner, who was holding the post of Deputy Director (Accounts) at the relevant time and during his tenure, the payments were made to the said Company.