IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 12524 of 2001(N)
1. T.I.SALI
... Petitioner
Vs
1. CHIEF ENGINEER, P.W.D., TRIVANDRUM
... Respondent
For Petitioner :SRI.C.UNNIKRISHNAN (KOLLAM)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :26/02/2009
O R D E R
S. Siri Jagan, J.
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O.P. No. 12524 of 2001
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Dated this, the 26th February, 2009.
J U D G M E N T
Disciplinary proceedings were initiated against the petitioner
in respect of payment of bill amount to a contractor for maintenance
of a pond in Mulakkulam Panchayat under the drought relief scheme,
while he was working as an Assistant Engineer at Kaduthuruthy Block
of the Public Works Department of the Government of Kerala. The
estimate amount was Rs. 12,500/-. Administrative and technical
sanction was also granted for that amount. The work was completed
on 26-5-1987. Measurement was recorded in the M Book by the
overseer and it was check-measured by the petitioner on 26-5-1987
itself. Pursuant thereto, an amount of Rs. 12,164.70 was paid to the
contractor, who was the convenor of a beneficiary committee who
undertook the work. Subsequently, one of the members of the
beneficiary committee filed Ext. P1 complaint alleging that the work
was not completed and the man days calculated was exaggerated.
The B.D.O concerned forwarded Ext. P1(a) report to the Collector
stating that the allegation regarding the excess man-days is not true.
In respect of the other allegation, the report was silent. By Ext. P2
dated 31-12-1987, the petitioner and the overseer were placed under
suspension. Thereafter, it appears that the Executive Engineer of
PWD Roads Division, Kottayam was directed to conduct an enquiry.
By Ext. P3 dated 24-12-1988, the Chief Engineer forwarded Ext. P3
report of the Executive Engineer to the Government. Earlier, the
Chief Technical Examiner had measured the pond as 47 meters x 20.4
meters whereas in Ext. P3 report the size of the pond was measured
as 62 meters x 28 meters. The Executive Engineer also said that in
view of passage of time and from the available quantity of the cut
soil, the correct quantity of the work done cannot be arrived at, at
that point of time. Subsequently, Ext. P4 charge memo dated 6-6-
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1989 was issued to the petitioner directing him to submit his written
statement of defence against the charges levelled in Ext. P4 with a
proposal to recover the proportionate share of loss sustained by the
Government out of the excess amount of Rs.7165/- paid to the
contractor, from the petitioner. A statement of allegations was
attached to the same. The petitioner filed Ext. P5 reply refuting the
allegations against the petitioner, specifically pointing out that in Ext.
P3 report of the Executive Engineer, no finding against the petitioner
was recorded. However, by Ext. P6 show cause notice, the
petitioner’s written statement of defence was rejected and it was
found that the petitioner is responsible for excess payment of
Rs.7165/- made to the contractor. He was directed to show cause why
the punishment of recovery of the said amount should not be imposed
on him. The petitioner filed Ext. P7 objections, However, by Ext. P8
order, the same was confirmed and it was directed to recover an
amount of Rs.2866/- in 22 instalments of Rs.125/- each from his
salary with the last instalment as Rs. 116/- . The petitioner filed Ext.
P9 appeal to the Government on 15-11-1990. After two years, by Ext.
P10 dated 25-8-1992, the petitioner was directed to show cause why
the punishment should not be enhanced and the punishment of
barring of increments for two years with cumulative effect should not
be imposed on the petitioner in addition to the recovery of loss.
Again, the petitioner submitted Ext. P11 objection. Thereafter,
according to the petitioner, he was not informed of any further orders
pursuant to Ext. P10.
2. While so, by Ext. P12, the Chief Engineer sanctioned 10 year
higher grade to the petitioner excluding the period of suspension
undergone by him apparently because the period of suspension had
not been regularised. When Ext. P12 dated 21-10-2000 was
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forwarded to the Accountant General, the Accountant General said
that by order dated 23-5-1996, the period of suspension of the
petitioner had already been regularised. According to the petitioner,
it was from Ext. P13 he came to understand about the order dated 23-
5-1996, which apparently was on the show cause notice for enhancing
the punishment. Therefore, he obtained copy of that order, which is
produced as Ext. P14. In Ext. P14, in addition to the recovery of an
amount of Rs.2868/- the punishment of barring of increments for two
years was also imposed on the petitioner. Subsequently, by Ext. P14
(a), Ext. P14 order was modified making the punishment of barring of
increments “with cumulative effect”. The petitioner is challenging
Exts.P8, P14 and P14(a) in this original petition.
4. The contention of the petitioner is that the conclusion of
guilt arrived at by the disciplinary authority and the Government is
totally perverse. He points out that there was no reliable evidence
whatsoever to show that the measurement recorded by the petitioner
was bogus. The petitioner points out that by Ext. P1(a), the B.D.O had
reported to the Collector that there was no basis for the allegation
that the man days reported is not correct. Again, by Ext. P3, the
Executive Engineer stated that from the available quantity of cut soil,
the correct quantum of work done cannot be arrived at. Further, the
Chief Technical Examiner measured the pond as 47 m. x 26.40 m.
whereas the Executive Engineer measured it as 62 m. x 28 m. That
itself, according to the petitioner, shows that there was serious
infirmities in the measurements. He would further point out that
although the petitioner had submitted Ext. P5 reply running into 5
pages to Ext. P4 memo of charges in Ext. P6, all what has been
stated is that the defence statement submitted by the petitioner was
examined with reference to the inspection note of the Chief Technical
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Examiner and other connected records and found that the petitioner
was responsible for non-payment of Rs. 7165/- made to the contractor
without stating as to how that conclusion was arrived at and without
discussing the elaborate reply given by the petitioner. He further
submits that it was after two years of his filing an appeal that the
Government came up with a show cause notice for enhancing the
punishment. To the same, the petitioner submitted very detailed
reply. However, the petitioner was not afforded an opportunity of
being heard and he was also not informed about the result. He
further points out that Ext. P14 has been modified by Ext. P14(a)
without an opportunity of being heard to the petitioner.
5. A counter affidavit as been filed by the 3rd respondent
refuting the contentions of the petitioner.
6. I have considered the rival contentions in detail.
7. I am inclined to agree with the counsel for the petitioner.
Apart from the fact that the amount involved is very low, I find that
the measurement recorded was not consistent. The Chief Technical
Examiner is stated to have returned a measurement of 47 m. x 26.4
m. whereas the Executive Engineer had returned a measurement of
62 m. x 28 m. in Ext. P3. The difference is very substantial, perhaps
sufficient cover the difference now sought to be recovered.
Therefore, while passing orders of punishment on the petitioner, that
too, without an enquiry, the disciplinary authority had a duty to
explain this discrepancy. Nothing of that sort is stated in the orders
imposing punishment. As such, I find that Ext. P8 order is perverse in
so far as relevant materials have not been considered by the
disciplinary authority and no reasons are mentioned in the orders
finding the petitioner guilty.
8. Apart from that, when the Government wanted to enhance
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the punishment to one of barring of increments with cumulative effect
in addition to recovery of loss imposed by the disciplinary authority,
the Government had a duty to afford the petitioner an opportunity of
being heard. There is nothing to indicate that the petitioner has been
heard before passing Exts. P14 and P14(a). In fact, there is nothing to
indicate that Exts. P14 and P14(a) had been served on the petitioner
at all.
For all the above reasons, I am satisfied that the impugned
orders are perverse, violative of principles of natural justice and
unsustainable. Accordingly, the same are quashed.
Sd/- S. Siri Jagan, Judge.
Tds/