IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2756 of 2006 BANARAS PRASAD . Versus THE STATE OF BIHAR & ORS . ----------- For the petitioner:- Mr. R.N.Mukhopadhaya,Advocate For the State:- Mr. S.D. Sanjay, A.A.G-12 9 04.02.2011 Heard counsel for the petitioner and Additional Advocate General No.12, namely, Mr. S.D. Sanjay appearing on behalf of the State. Petitioner was appointed as Assistant Engineer in the Road Construction Department but presently working in National Rural Employment Programme on deputation. This application has been filed by the petitioner for a direction to the Deputy Development Commissioner, Bhojpur at Ara for not taking any action against the petitioner in violation of the Rule as by order dated 22.12.2005 the Deputy Development Commissioner, Bhojpur at Ara has directed the petitioner to return the amount released for construction of drainage at Narayanpur, in the district of Bhojpur. In case it will not be returned, action will be taken against him. Petitioner is aggrieved by the letter impugned. Firstly that the construction work of drainage at Narayanpur under Agiawan Block under Project No. 66/2002-2003 was started by his predecessor Sri Ashok Kumar, posted 2 as Assistant Engineer, NREP. A sum of Rs. 4,15,200/- was released for construction of drainage in November/December, 2002. Part of the construction work was already completed before joining of the petitioner i.e. prior to 28.12.2003. Since first phase of the work has already been completed and the second phase of the work was started after joining of the petitioner, a report was submitted for further extension of work of the said drainage at Narayanpur. Estimate was prepared and the same was also passed on 8.11.2003. Administrative approval for the same was also given by the Deputy Development Commissioner on the basis of technical sanction for Rs.4,76,200/- and advance of Rs. 2,38,100/- was released on 6.1.2004. On 28.1.2004 and 5.2.2004 advance amount of Rs. 1,15,000/- and Rs. 1,23,100/- ( total Rs. 2,38,100/-) were released for construction of the drainage and the work was immediately started by the petitioner. The work has already been completed approximately to the advanced amount. Petitioner’s case is that the work has been done in excess to the amount released. At this stage, when a direction has been issued to the 3 petitioner through the impugned letter to refund the advance amount, it is not possible for him. It has also been stated by the petitioner that Deputy Development commissioner, Bhojpur at Ara cannot direct to initiate departmental pproceeding against the petitioner, as for this he is not competent. The petitioner being on deputation in NRIP Department and his parent department being the Road Construction Department, no disciplinary action could be taken against him. So far Deputy Development Commissioner, Bhojpur at Ara is concerned; he can only make a recommendation in this regard. Counter affidavit and supplementary counter affidavits have been filed on behalf of Respondent nos. 3 to 5 i.e. the District Magistrate, Bhojpur, Deputy Development Commissioner, Bhojpur and the Executive Engineer, National Rural Employment Programme, for which it transpires that the construction of drainage work has not been done properly. It has resulted into non productivity of the expenditure on the construction of drainage of Phase-II against an administrative approval of Rs. 4,76,200/-. The construction was found to be 4 technically faulty, as such Deputy Development Commissioner, Bhojpur at Ara has issued letter dated 1.9.2006 to the petitioner. It has also been stated that the Deputy Development Commissioner, Bhojpur at Ara is fully justified in taking action on the report of the Enquiry Committee and the petitioner cannot take shelter behind the gross negligent act of his predecessor. After going through the writ petition and the counter affidavit, it transpires that the construction was undertaken by the petitioner on an administrative approval/ legal sanction of the competent authority. The construction cost was estimated and near about 50% of the estimated construction cost was released as an advance in favour of the petitioner. Subsequently, it was found that the construction is technically not correct, so it is a pure question of arithmetic as to how much money has been spent on the construction work. This can be assessed only after the work done by the petitioner is measured and the materials which have been used in the construction as well as the cost incurred for this purpose. For this purpose proper opportunity is required to be provided to the 5 petitioner and with the help of technical expert’s the measurement work should be done. The expenditure which has been incurred in such construction is required to be adjusted, even if the construction is said to be faulty. All these things need proper enquiry. The respondent authorities are directed to get the matter enquired into giving proper opportunity to the petitioner. In case on enquiry, the petitioner is found to be at fault or it is found that the money advanced to the petitioner has not been spent and still some amount is left, then only petitioner can be asked to refund the amount. In case the petitioner refuses to return the amount any disciplinary action should be taken against the petitioner by making recommendation to the Parent Department for taking necessary action against the petitioner. With this observation, this application is disposed off. Akumar ( Mridula Mishra, J.)