IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3632 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- N H MEHTA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR NALIN K THAKKER for Petitioner GOVERNMENT PLEADER for Respondent No. 1 MR HS MUNSHAW for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL Date of decision: 16/02/2001 ORAL JUDGEMENT #. This matter has a checkered history of litigations, first Special Civil Application, thereafter Civil Application, thereafter contempt application and again the present Special Civil Application. The petitioner who was working as Executive Engineer was subjected to departmental inquiry. Inquiry was against 22 officers including retired Superintending Engineer, retired Chief Engineer, Superintending Engineer, Executive Engineers and Deputy Engineers. Commissioner of Inquiries & Ex Officio Secretary to the Government Shri T.V. Krishnamurty conducted the inquiry. After completion of inquiry, the Inquiry Officer came to a conclusion against the petitioner herein. The inquiry report as delivered by the Inquiry Officer is not produced on record. However, learned advocate for the petitioner has produced 7 typed pages and thereafter he has produced page 33 which may be relevant to the petitioner. It appears from the finding that the petitioner was executive Engineer in charge of the Public Health, Scarcity Division at Himmatnagar during scarcity of 1972-73. The petitioner was chargesheeted for excessive payment for drilling in three tube wells in Sabarkantha District, during 1972-73. These tube wells are from amongst the list of 78 tube wells where excessive drilling had been found out, out of 229 tube wells during the scarcity of 1972-73. During the scarcity of 1972-73, work of tube wells was undertaken at villages Vakhtapur, Taluka Prantij, Jenpur village, Taluka Prantij and Tentarda village, Taluka Prantij. #. It was the case of the delinquent - petitioner that, as per his statement on 31.8.81, excessive drilling was necessary because the debris falls while lowering of the pipes which scrape through the walls of the bore holes. The extra drilling in these three bores ranged from 11.58 mtrs. to 20.84 mtrs. It seems that the Inquiry Officer considering the evidence of the witnesses arrived at a conclusion that there was extra drilling than the depth of the gravel pipes which appeared to be normal. However, there was excessive drilling which could have been saved. Had the Executive Engineer used his experience and guided the Deputy Engineer under him to be careful, he could have avoided the extra cost to the government amounting to Rs. 4,950/-. The Court is not concerned with the outcome of the inquiries against other officers as the matter is not pertaining to other officers. However, the learned Asstt. Govt. Pleader submitted that out of 22 officers, one died and 2 officers were exonerated (namely S.T. Motwani, Executive Engineer and Shri R.M. Nasikar, Deputy Executive Engineer). It is also pointed out that there was deduction of salary for particular period. The persons were reverted to lower post. There was stoppage of promotion. There was cut in pension. It was submitted that considering the loss, punishment was imposed. On the basis of the inquiry report, by an order of the Hon'ble Governor dated 19th August, 1987, it was held that the report is accepted and the charges made against the delinquent are proved. However, considering the decision, it was decided to impose penalty of "censure" only. Gujarat Civil Services (Conduct) Rules, 1971 and Gujarat Civil Services (Discipline & Appeal) Rules, 1971, if read, it becomes clear that part III of the Discipline Rules refers to discipline wherein penalties are indicated. One of the minor penalties is censure. #. As there was delay in decision, it seems that the petitioner moved the learned Single Judge by filing Special Civil Application No. 2162/86. However, the learned Single Judge considering the facts and circumstances of the case, directed the government to complete the inquiry proceedings against the petitioner within a period of three months from the date of communication of the order. It was also observed that failing this the Court will be constrained to quash the inquiry proceedings inasmuch as the inquiries were pending for very long time. Liberty was reserved to move the Court again even by filing a note. The learned Single Judge observed by an order dated 4.7.86 that if the petitioner is exonerated at the end of the inquiry, the question of his promotion as per the assessment contained in the sealed cover shall be immediately implemented. #. It seems that thereafter there was no further progress and therefore, the petitioner filed Civil Application No. 519/87 in Special Civil Application NO. 2162/86. The petitioner prayed therein for mandatory interim order for grant of ad hoc promotion on the post of Superintending Engineer and for quashing and setting aside the inquiry proceedings. The Court called upon the respondent-State by an order dated 3rd July, 1987 to place on record the reasons for delay in the disposal of the inquiry and the names of the persons responsible for the delay. However, before the Court, later on it was pointed out that no further direction is required to be given as Competent Authority by an order dated 19th August, 1987 has imposed penalty of censure for the negligence in discharge of his duties. The learned Single Judge pointed out that in view of the outcome of the departmental inquiry and the petitioner having been visited with the minor penalty of censure, the question of his promotion and grant of benefits is required to be considered. It was submitted before the Court that the decision of the authority on the question of his promotion was placed in sealed cover as he was facing departmental inquiry. The Court pointed out that "If the content of the sealed envelope was that the petitioner was considered fit for promotion, the concerned authority should take decision in this behalf as early as possible and latest within three months from the date of the order and also consider the question of grant of consequential benefits within even time." It seems that noting was done in the matter with regard to the benefits. The petitioner thereafter filed Misc. Civil Application No. 369/87 in Special Civil Application No. 2162/86 and in report it was pointed out to the Court that the sealed cover has been opened and the promotion has already been given to the petitioner. About the grant of the consequential benefits including deemed date etc., a decision was taken that no deemed date of promotion can be given to the petitioner. It was stated that the order in that connection will be served on the petitioner at the earliest. The Court opined that the petition does not survive in the facts and circumstances of the case. However, the Court directed the respondents to serve order of taking the aforesaid decision of not granting deemed date of promotion as early as possible. It seems that thereafter decision was rendered and served to the petitioner vide Annexure : E dated 17th February, 1988 wherein it was pointed out that the government has carefully considered the matter and decided not to give any consequential benefits as the same are not admissible as per the existing policy of the government. As per the existing policy of the government at the relevant time consequential benefits were admissible only to those govt. servants who were fully exonerated as a result of the departmental inquiry. The government was of the view that since the delinquent was visited with the penalty of censure on the conclusion of departmental inquiry, he cannot be said to be fully exonerated and hence the delinquent was not entitled to the consequential benefits. The petitioner in this petition has challenged that decision and has prayed that the deemed date of promotion, fixation of granting of increment, payment of arrears of salary etc. should be granted from December, 1983 by the State in the cadre of Superintending Engineer according to the findings recorded in the sealed cover and to consider him for promotion to the post of Chief Engineer and to further grant consequential benefits on the further promotion of Chief Engineer since March, 1988 in accordance with law. The petitioner has also prayed to quash and set aside the order Annexure : B dated 19th August, 1987 viz. decision rendered by the State Government whereby penalty of censure was imposed on the petitioner. #. It is a matter of great surprise that the petition was filed in the year 1988, however the State has not bothered to file reply till the matter was taken for final hearing. Even appearance was not filed on behalf of the State of Gujarat though the State was served. The Court must ensure that justice is done to the litigant and there should be no disposal of the matter merely. Either State or the aggrieved citizen would suffer monetary loss if the matter is disposed of without considering the case of both the sides. The Court in the absence of reply could have arrived at a conclusion that the averments being not controverted by the State, there is substance and if there would have been no substance State would have filed its reply objecting the say of the petitioner. Is it the say of the State that as before the Court contentions raised in the petition are not denied, the Court may pass order relying on the contentions raised in the petition? #. In the instant case, the Court was facing with yet another difficulty and that of not filing proper documents by the petitioner as well. As indicated, the order was not placed but the Court may not take it very seriously. However, looking to the evidence on which reliance was placed, learned advocate for the petitioner simply placed certain paragraphs from the evidence vide Annexure : G and requested the Court to go through this evidence and to come to a conclusion from the same that there was no evidence against the petitioner and the finding recorded by the Inquiry Officer is contrary to the evidence. It was a matter of surprise when learned advocate stated that this Court should not insist for the order as a whole or the copies of evidence more particularly when it is not insisted by other Courts. Attention of learned advocate was drawn to the relevant rules in this behalf. Thereafter he searched the papers and produced copies of evidence of some of the witnesses. He stated that he was not able to produce entire evidence and sought for time. He requested that time may be granted in the interest of justice. All the documents on which reliance is placed ought to have been filed along with petition. Subsequently, in the midst of hearing if adjournment is sought on such grounds, it causes lot of inconvenience and is waste of public time. The Court pointed out that it is the duty of the advocate if he wants to place reliance on the documents, to produce the documents, i.e. certified copies of the documents or certified to be true copies of the documents or at least certified copies of the original under his signature if he has gone through after comparision with the original. (This may be accepted at the stage of admission and not at the time of final hearing). As there was no appearance on behalf of the State, the Court thought it fit to call upon the officer concerned to remain present with the record and it is only thereafter the Court could get the copy of the evidence with the assistance of the Assistant Govt. Pleader in the matter. #. It is submitted that whether the petitioner was required to render assistance to the Deputy Executive Engineer in particular manner so as to see that there is no loss occasioned to the State is a technical subject. When the State Government relies on its officers and considering that they are qualified, the State expects that the officers shall discharge duties not only in accordance with law but also with special knowledge which they have derived at the cost of the State. #. Number of witnesses were examined by the Inquiry Officer. Mr. Thakkar, learned advocate appearing for the petitioner submitted that vide Govt. Circular dated 17th November, 1972, resolution was passed. It was pointed out that due to failure of rain, acute scarcity of water was felt throughout the State. With a view to avoid hardship and to eliminate all possible delay in fixing the agency for drilling bores district wise rate schedules were prepared and as per those schedules for Sabarkantha and Kachchh districts rates were fixed. If there was drilling bore hole for 200 mm. housing pipe of 0 to 30 meters then the rate was fixed at Rs. 140/- per meter. In case, the drilling was required for more than 30 meters to 60 meters, then the rate was fixed at Rs. 170/- per meter. In case drilling bore hole for 150 mm. for casing pipe was required for 61 to 90 meters, for 30 meter rate was fixed at Rs. 90/- per meter. For 90 to 120 meters for remaining 30 meters, rate was fixed at Rs. 105/- per meter. For remaining 30 meters, i.e. from 121 to 150 meters, rate was fixed at Rs. 140/- per meter. With regard to housing pipe, casing pipe, stainer pipe, gravel packing etc. different rates were fixed. Learned advocate for the petitioner submitted that in view of Annexure : XII placed on record at page 65, terms and conditions for water supply tube wells tobe drilled have been fixed. There is no responsibility of the petitioner in the act alleged. Reading the same, it appears that upto 10 cm. deviation in 30 meters, no deduction was to be made in payment. If there was deviation beyond 10 cm. as stated above, if the pump either the submersible or turbine as the case may be, can be lowered and run satisfactorily, 10% deduction from the drilling charges were to be made. It was also pointed out that any of the pump as stated above, with the deviation upto 10 meters in 30 meters cannot be lowered and cannot run satisfactorily, the tube well will have to be rejected and no payment was to be made. So far as the strata is concerned, it was required to be verified by the Deputy Engineer or any of the govt. representative and the contractor was required to accept that varefication. #. If further drilling could not be done due to encountering, the sticky clay like black shaky clay or shale, the decision of the formation was binding to the contractor as finalized by the Deputy Engineer in charge or any other Government representative. Relying on this, learned advocate for the petitioner submitted that it was the liability of the Deputy Engineer and not of the Executive Engineer. It is required to be noted that clauses 3 and 4 refer to decision with regard to strata and in case of inability of further drilling on account of sticky clay etc. Deputy Engineer was required to take decision which would bind the contractor. ##. Learned advocate, appearing for the petitioner placed reliance on Annexure : K, a circular dated 11th January, 1972. It was pointed out with a view to show that in view of the bonafide mistake, no action was required to be taken and the petitioner was not required to suffer. In case of bonafide mistake, the petitioner should not be asked to suffer because it cannot be the intention of the government to penalize the govt. officer for bonafide mistake. It was also emphasized by the learned advocate appearing for the petitioner that in view of the resolution, all the officers could develope efficiency also by learning from mistake. The Government would therefore like to assure the officers that they will be fully protected in respect of bonafide decision. Learned advocate for the petitioner also emphasized on the overall performance of the concerned officer during reasonable period of time during which the mistake was committed as well as his character roll and reputation in the department should be taken into consideration. Learned advocate for the petitioner placed on record Annexure M at page 70, a tabular statement ( true copies of statement signed by Deputy Engineer and Executive Engineer, Ahmedabad). It was submitted that on the basis of this statement, at village Vaktapur as per the starta chart 99 meters was the drilled depth of the tube well. So far as the cased depth is concerned, cased depth as per the strata chart was 82.13 meters and the difference was 16.87 meters. So far as village Poyada is concerned, drilled depth as per the strata chart was 52.50 meter while the cased depth as per the strata chart was 45.72 meters and there was difference of 6.78 meters. At village Jenpur, the drilled depth as per the strata chart was 99.06 meters and cased depth in meter as per the strata chart was 81.48 meters and the difference was 11.58 meters. At village Tantarda, drilled depth in meter as per the strata chart was 106.68 meters while cased depth as per the strata chart was 85.984 meters and the difference was 20.84 meters. ##. With regard to drilling at the relevant time, it was also pointed out that in alluvium area, generally bore is drilled by the Direct Rotary Method. In this method, pilot bore is drilled first upto the estimated depth. During drilling, soil samples are collected at the interval of 3 meters and lithological log is prepared from soil sample details. ##. In alluvium area generally sandy and clayey strata are available. Sandy strata are porous and permeable hence water bearing, while clayey strata are impervious. On the basis of litho log, pipe assembly is prepared and lowered into the borehole. Generally pipe assembly is so arranged that slotted portion remains against the water bearing strata and casing portion remains against the clayey strata. For safe lowering of pipe assembly, generally depth of the borehole is kept 3 meters more than the pipe assembly so that pipe assembly can be lowered into the hole safely. Pipe assembly is never forced into the bore hole but it is kept suspended into the bore hole. After safe lowering of the pipe assembly, gravel packing is done around the pipe assembly. Gravel packing acts as filter media and would prevent sand particles entering the tube well and would give generally sand free water. ##. Gujarat Water Supply & Sewerage Board while issuing tender for drilling in its technical-commercial bid has also considered the aspect of permissible limit of extra drilling. It is pointed out therein as under. " In case, cement sealing is proposed below the total depth of housing, then the upper reaming shall be continued upto the upper limit of cement sealing. The lowering of pipe assembly at required depth of 3 meters more reaming should be carried out beyond the full depth of pipe assembly to ensure the safe lowering against any cutting remaining in the bore hole. No payment will be made for this 3 meters extra drilling." In the instant case, the Executive Engineer was required to recover the amount as indicated in Annexure : M. There is no question that he should have been careful at the time of drilling but the question was that as per the tender and as per the policy, if there was more difference than permissible, the amount was required to be deducted. The strata charge at pages 89 and 90 is placed on record to point out as to how the matter is to be considered. The total depth is 203 meters while pipe is of 200.89 meters. Similarly for tube well at Nilki Fatak, total depth is 242 meters while pipe assembly is of 239 meters. At Odaki tube well, total depth is 232 meters while pipe assembly is 230 meters. It is pointed out that in the instant case, so far as the tube wells are concerned, the total difference between the total depth and naked drilling is more than 3 meters. According to the department, if the officer concerned would have been careful while approving the bills, he could have noted the difference which is more than 3 meters and could have saved the amount of Rs. 4,950/which has been paid to the contractor towards the drilling. ##. Mr. Thakkar submitted that there is no evidence in this behalf. He further submitted that witness Sureshchandra Vyas has admitted that it is possible that water may not be available in some cases or even if there is possibility of water, it may not be potable. He submitted that the said witness Shri Sureshchandra Vyas has also pointed out that while putting pipe assembly in the tube well, some space is required to be kept as some earth is likely to fall while putting the assembly. Mr. Thakker further submitted that the witness has also pointed out that in some assembly in some cases, drilling to the extent of 50-60 meters in excess may be there for the aforesaid reasons. The witness has also stated that for finding out water, it is necessary to go beyond 30 meters and there is no guarantee that only at 30 meters, strata of water would be available. Witness Maulvi was also examined before the Inquiry Officer wherein he has stated that for the classification of strata, Executive Engineer can not be held responsible. It is only at the time of drilling one would come to know whether strata is hard or not. However, he stated that on the basis of the geological survey, one would come to know about the strata. He admitted that at the time of drilling to find out whether there is hard rock or not, one officer should remain present. He further stated that it is not possible for a person to remain present. According to his view, for the drilling of 200 meters, it would take atleast 12 to 15 days for the drilling of 200 meters. On the record, there are documents to show that it will take about 12 days. This witness has been cross-examined in detail about the procedure and the method of drilling in other areas. When the witness was cross-examined, it is stated that no instructions were given by the government to the field officer that after water being made available at 30 meters, drilling should be stopped. The witness has stated that if there is difference of 10 meters in the drilling, the depth and the actual pipe, it can be said to be reasonable. This witness was asked to refer to the book pertaining to the Exploratory Board and the Tube wells upto December 1968. He has stated that there was difference in actual pipe and the drilling. He has given reasons for the difference. He has admitted that as per the strata dated 17.1.80, the government has suffered loss to the tune of Rs. 14.97 lacs. On behalf of another officer, the witness was cross-examined and he has stated that if the drilling is within the depth shown in the schedule, then it cannot be said to be the case of excess drilling. He stated that in Sabarkantha district, decision taken on the spot is technically justifiable. He was asked to refer to difference between the actual pipe and the drilling in Bhuj district. The witness has stated that even in