IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 16239 of 1999 Between: 1 The Executive Engineer, Y.R.C. Division, Peddapuram, E.G.District. 2 The Chief Engineer, V.Y.P.P. Unit, Dowlaiswaram, East Godavari District. 3 The Dy.Executive Engineer, Y.R.C. Sub-Division-I, Narsipatnam, Visakhapatnam Dist. ..... PETITIONER(S) AND 1 G. Radhakrishna Murthy, YRC, Sub-Dn.No.4, Narsipatnam, Visakhapatnam Dist. 2 B. Jagannadha Rao, YRC Sub-Division 4, Narsipatnam, Visakhapatnam - Dist. 3 The A.P. Administrative Tribunal, Rep. by its Registrar, Hyderabad. (R3 is not necessary) .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any Writ, order or direction more particularly one in the nature of "WRIT OF MANDAMUS" and set aside the judgement dt.31.12.1998 passed in O.A.No.929/97 of the Hon'ble A.P. Administrative Tribunal and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: GP FOR SERVICES II Counsel for the Respondent No.: MR.M.V.SURESH The Court made the following : ORDER: (Per Sri V.Eswaraiah, J.) Heard the learned counsel appearing for the respective parties. The 1st respondent filed O.A.No.929 of 1997 before the Andhra Pradesh Administrative Tribunal questioning the order of the Executive Engineer, Y.R.C Division, Peddapuram issued in proceedings No.EC1/A35(A)/NEP/Vol.D/129-M, dated 30.1.1997, based on the enquiry report dated 27.9.1995 for recovery of Rs.40,000/- at the rate of Rs.1000/- per month commencing from February, 1997. The Tribunal by order dated 31.12.1998 allowed the said O.A., setting aside the impugned order 30.1.1997. Aggrieved by the same, the Department filed this writ petition contending that the 1st respondent while working as Assistant Engineer, Y.R.C. Sub Division No.I, Narsipatnam, under the control of Y.R.C Division, Narsipatnam (defunct) placed requisition on loan basis or cost basis for urgent work in Y.L.M.Canal reach from Km.71.20 to Km.74.50 to provide lighting arrangements to observe progress of work at nights. Accordingly, the “Aluminium Conductor 4 Km., long 7/3.1 A.11” was brought by the 1st respondent by a private vehicle from Visakhapatnam Steel Plant along with other material and dumped on 28.3.1990 at midnight in the campus of M/s.M.Prabhakara Rao and Company, Engineers/Contractors who are executing the work of Y.L.M.Canal, instead of unloading in Departmental stores/stock yard available nearby Y.L.M.Canal. The transportation charges were paid by the accountant of the said contractor instead of paying the transportation charges by the Department. The allegation is that the respondents failed to observe departmental procedure and codal rules to take responsibility of the Government property. It is the allegation that the first respondent has discharged his duties irregularly and irresponsibly and hence he and another B.Jagannadha Rao, Deputy Executive Engineer are liable for the said cost of the material at the rate of Rs.40,000/- each. It is the case of the 1st respondent that while he was working as Assistant Engineer in Y.R.C. Sub-Division-I, Narsipatnam under the control of the 1st and 3rd petitioners, the 1st petitioner requisitioned 7/3-1 Aluminium Conductor 6 KM long from Visakhapatnam Steel Plant vide his letter dated 23.3.1990 and entrusted the same to him to bring it from Visakhapatnam Steel Plant in view of urgency and simultaneously the 1st petitioner also requisitioned Visakhapatnam Steel Plant to issue 500 Mtrs., of 50 mm cable to him by letter dated 25.3.1990 and he unloaded the material as per the instructions of the Executive Engineer in the camp of M/s.Prabhaker Rao and Company and the same was intimated to Jagannadha Rao, Assistant Executive Engineer and incharge along with necessary documents like Gate pass, delivery challan and compliance report to 1st and 3rd petitioners on 29.3.1990. The said receipt of the material was also admitted by the contractor. It is stated that for the letter issued by the 1st petitioner dated 2.11.1991 about not appearing of the material in the records, the 1st respondent gave a detailed explanation on 24.1.1992 itself and thereafter no action has been taken and only initiated enquiry in 1995 after long lapse of time. It is the case of the 1st respondent that there is clear evidence that he handed over the materials to the contractors and the contractors also admitted the existence of goods at their yard and therefore there is no loss caused on account of the alleged negligence on the part of the 1st respondent. It is not the case of the Department that the said consignment was misappropriated by the 1st respondent The Tribunal held that the incident relating to the supplying of material to the contractor is in March, 1990, whereas the enquiry was initiated after 5 ½ years and the 1st respondent did experience difficulty in procuring the witnesses to assess site conditions and to collect information etc. Some of the relevant records were missing on account of long gap between the time of the incident and the time of enquiry. Important papers supposed to be available in Y.R.C Sub-Division, Narsipatnam, could not be made available in spite of specific requisitions and in fact the concerned contractors themselves admitted that some quantity of Aluminium Conductor was identified in their reach when joint inspection of the Department and their staff was made and they also agreed to accept that the missing material belong to the Department. If that be so, the contractor himself agreed to reimburse the cost of the material. It is further stated that after the lapse of 5 ½ years the relevant records could not be procured and no where the 1st respondent was asked to deposit the material in the Departmental Stores and the material records and the evidence found, it is apparent that on account of urgency the first respondent though was not concerned and was working elsewhere was entrusted with the job of going over to Visakhapatnam Steel Plant and bring the same and hand over the same as it was intended to Y.R.C Sub Division, Narsipatnam. Admittedly, the material was intended for use of the aforesaid contractors and it was intended to make lighting arrangements for all along the deep cut reaches wherein the work was in progress from KM 71.200 to 74.500 and other gaps, if any, in the said division. It is not the case of the Department that the 1st respondent did not bring the material as directed and that he did not entrust the same anywhere. The 1st respondent is found fault mainly on the ground that he did not deposit the same in the Departmental Stores. There is clear-cut evidence that he handed over the same to the contractors in their reach and to that extent there is convincing documentary evidence as well. The Tribunal further observed that on account of long lapse of delay of 5 ½ years by the time the enquiry was initiated, the first respondent could not furnish the needed details. Further the enquiry officer also did not examine the crucial witnesses viz., Contractors, Truck Driver etc., and there are also laches and lapses even in the enquiry proceedings as well and therefore liability could not be fastened against the 1st respondent. Accordingly, the Tribunal set aside the proceedings dated 30.1.1997 issued by the Executive Engineer, Y.R.C Sub Division, Peddapuram. Having regard to the facts and circumstances of the case, we are of the opinion that there was some negligence on the part of the 1st respondent in not entering the material in the relevant records. But, however, it is stated that he has given necessary instructions and the papers to the 2nd respondent. But the higher officials as well as the concerned officer denied the said averments made by the 1st respondent. We are of the opinion that as there is no specific allegation of misappropriation of aluminium conductor and it was the specific case that the said material was made use of the contractor and it was unloaded by the contractor and having regard to the facts and circumstances of the case, it may not be just and proper to affect recovery from the 1st respondent, if not already made. It is also made clear that if any amount was already recovered, the 1st respondent shall not be entitled for refund of the said amount. The writ petition is accordingly disposed of to the extent indicated above. No order as to costs. _________________ V.ESWARAIAH, J. ___________________ P.SWAROOP REDDY, J. 18.6.2009 kpr