IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 OP.No. 28557 of 1999(Y) ----------------------- PETITIONER(S): ---------------------- 1. C.T.SIVANKUTTY, EXECUTIVE ENGINEER, LEGISLATURE COMPLEX, CONSTRUCTION DIVISION, THIRUVANANTHAPURAM. 2. K.S.SURENDRANATHAN, TECHNICAL ASSISTANT, PUBLIC WORKS DEPARTMENT, ROADS DIVISION, PALAKKAD. BY ADV. SRI.S.ESWARAN SRI.S.EASWARAN RESPONDENT(S): ----------------------- STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY,SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.ANU SIVARAMAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.28557/99 ORDER IN C.M.P.NO.48549/99 AND IA NO.10727/05 IN OP NO.28557/1999 DISMISSED 22/10/2009 SD/-ANTONY DOMINIC, JUDGE APPENDIX PETITIONERS' EXHIBITS EXT.P1: COPY OF MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS NO.32485/F3/83 PWF&P DT 24.1.1985 ISSUED TO THE 1ST PETITIONER. EXT.P2: COPY OF EXPLANATION DT 14.2.1985 SUBMITTED BY THE 1ST PETITIONER TO EXT.P1. EXT.P3: COPY OF EXPLANATION DT 3.4.1985 SUBMITTED BY THE 2ND PETITIONER TO EXT.P1. EXT.P4: COPY OF GO(RT) NO.1297/95/IRRN. DT 24.11.95 ISSUED BY THE RESPONDENT. EXT.P5: COPY OF JUDGMENT DT 15.7.98 IN OP NO.1214 OF 1997 T. EXT.P6: COPY OF GO(RT) NO.1103/99/IRRN. DT 18.8.99 ISSUED BY THE RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ O.P NO. 28557 OF 1999 (Y) ===================== Dated this the 22nd day of October, 2009 J U D G M E N T The first petitioner was working as Assistant Executive Engineer and the second petitioner as Assistant Engineer in the Kuriarkutty-Karappara Irrigation Project, Palakkad District. 2. In 1983, certain labour oriented works were awarded by them. It is stated that the project was completed in 1983 itself. Long thereafter on 24/1/85, Ext.P1 memo of charges along with statement of allegations were issued to the petitioners alleging that in the work executed, the Government have suffered a loss of Rs.2,32,849.26/-. It is also stated that the work was inspected by the Chief Technical Examiner on 11/6/83. The main allegations are that though the works were arranged in the same continuous reach of the canal, the works were split into 20 in order to limit the estimate cost to Rs.20,000/- in each case, to arrange the work in the sub division. It is also stated that as against the requirement of level measurements, only tape measurements were taken and false measurements were furnished. It is also stated that there was no signs of bunds being OP 28557/99 :2 : subjected to any fresh formation and that the existing bushes, rock out crops and grass, which would not have been there, had the works as measured were carried out, were seen at site. On these allegations, it was proposed to realise the loss from the Assistant Engineer, Assistant Executive Engineer and Executive Engineer concerned in the ratio of 50:40:10 respectively. Along with Ext.P1, inspection note regarding the inspection by the Chief Technical Examiner was also enclosed. 3. Exts.P2 and P3 are the explanations submitted by the petitioners. In the explanations, the allegation in Ext.P1 that the work was split into 20 to award by negotiation was admitted. According to them, the work being a flood relief work, they were under instruction to award and complete the work on schedule. It is stated that it was therefore that they had to split and arrange the work by negotiation and that there was no reason to suspect the execution of work. In Ext.P3, the second petitioner made detailed reference to the instructions that were given to him in the meeting convened by the District Collector which was attended by the then Minister concerned also. In so far as the allegation that tape measurements was adopted to measure the quantity of work done, it is stated that the same was adopted with OP 28557/99 :3 : due permission from the superior officers. It is also stated that the Chief Technical Examiner's inspection was without notice to them. They also state that the work was actually executed and payments made were for the work actually done. 4. Although the reply was given soon after Ext.P1 was issued, it was only by Ext.P4 order dated 24/11/95, the explanations were rejected and the decision to recover the loss as proposed in Ext.P1 was confirmed. Ext.P4 was challenged by the petitioners by filing OP Nos. 15506/96 and 1214/97 before this Court. By Ext.P5 judgment, Ext.P4 order was set aside and the matter was directed to be reconsidered. Accordingly, the matter was reconsidered and Ext.P6 order has been issued on 18/8/99. In Ext.P6, it is stated that in the Chief Technical Examiner's inspection of the work on 11/6/83, it was revealed that the work was split into 20 separate works in order to limit the estimate cost to Rs.20,000/- in each case so that the work could be arranged in the Sub Division itself, that the works were arranged on the basis of negotiated quotation, instead of on competitive tenders for the reported reason of dearth of time, that the finance inspection wing expressed doubt about the competence of the PA to the Superintendent to award the work, that the earth work in all items OP 28557/99 :4 : exceeding 300 m3 should have been measured by levels, but was measured by tape measurements and that false measurements were finalised. It is also found that the execution of the work could not have been completed within the period 19/3/83 to 29/3/83, since for the execution of the works within such a short period, it would require an army of 1500 workers per day. It is further stated that the major item of work was forming embankments using contractor's own earth, and that on inspection, it was observed that no such embankments formation was done in any of the seven reaches. It is also stated that the already existing bushes, rock etc., which would not have been there, had the work as measured been carried out, were seen at site, and that there was no indication of the bunds being subjected to any fresh formation and that nowhere such clear bund formation was visible. It is also stated that there was no indication of any burrow pits in the vicinity where from such large quantity of earth for bund formation could have been taken. On these facts, it is concluded that the work said to have been done was not done at all and on this account alone, a total amount of Rs.2.75 lakhs was paid to the contractor. 5. After stating the above, the contentions raised by the OP 28557/99 :5 : petitioner have been examined and the details of the wrong measurements furnished etc., have been dealt with. Finally, the allegation in so far as the splitting up of the work was dropped and proportionate liability is fastened on the petitioners for the loss, to the tune of Rs.2,32,849.26 as a result of recording and check measuring false measurements. On this basis, Rs.93,139.70/- is levied on the first petitioner and Rs.71,989.98/- is levied on the second petitioner. It is challenging this order the writ petition is filed. 6. Counsel for the petitioners contended that natural justice has been violated while passing Ext.P6 order. According to him, the inspection of the Chief Technical Examiner held on 11/6/83 relied in Exts.P4 and P6, was without notice to the petitioners. It is stated that if the petitioners were put on notice, they could have been present at the time of inspection and appraised by the Chief Technical Examiner about the incorrectness of his inferences. 7. In connection with the inspection by the Chief Technical Examiner, yet another contention raised is that the inspection was conducted after a long delay and therefore the outcome of the inspection, could not have been factually correct. OP 28557/99 :6 : In so far as the contention regarding the alleged delay in the inspection is concerned, facts show that while work is allegedly completed on 29/3/83, the inspection was conducted on 11/6/83. That apart, in Ext.P6 itself, it is stated that the inspection was conducted before the monsoon broke out. If that be so, there was no delay and there could not have been any change in the field to cause any prejudice to the petitioners. 8. In so far as the absence of notice at the time of Chief Technical Examiner's inspection on 11/6/83 is concerned, in my view, it is always open to the disciplinary authority to collect such material as he deems necessary for the successful completion of the disciplinary action. However, natural justice requires that any document or material that is relied on against the delinquent should be disclosed to him so that the delinquent will have an opportunity to defend the charges with reference to the facts as disclosed in the report of inspection. A reading of Ext.P1 memo of charges itself show that reference was made to the inspection conducted by the Chief Technical Examiner and the documents enclosed to Ext.P1 also show that this report was made available to the petitioners. If that be so, while submitting Exts.P2 and P3 reply, petitioners had the opportunity to submit their explanations OP 28557/99 :7 : about the findings in the Chief Technical Examiner's report. Not only that they had opportunity to file their representations before passing Ext.P4 and Ext.P6, which is impugned in this original petition, they were also heard and if they have any grievance about the findings of the Chief Technical Examiner, they could have raised it. Even in the replies submitted viz., Exts.P2 and P3, apart from stating that they were not given notice before inspection was conducted, petitioners have not stated anywhere that the conclusions of the Chief Technical Examiner are erroneous, and if so why. If they had a case that the Chief Technical Examiner's report was erroneous, it was for them to explain the errors in the report and canvassed the same before the disciplinary authority. Therefore, opportunity was extended and materials relied on was also disclosed to them, and in such a case, it is not open to the petitioners to now canvass that natural justice has been violated. 9. The other plea raised is that tape measurements were adopted by them with the permission of the superiors. This seems to be the case of the second petitioner in Ext.P3 reply filed. However, a reading of Ext.P6 show that in the measurements submitted by the petitioners, the quantify of work done was OP 28557/99 :8 : inflated and incorrect. Payments were made on the basis of the quantity shown in the petitioners' measurement reports and it is in that process loss was caused to the Government. Even if they have measured the quantity by tape measurements, still there could not have been any variation in the quantity. Therefore, even if I accept the contention of the petitioners that they had permission to conduct tape measurements, it was upto the petitioners to explain how they could submit an erroneous report. There is absolutely no explanation forthcoming in this behalf, in which case, even if they adopted to tape measurement with permission, they cannot escape from the consequences of having given false measurement report on the basis of which payment was made resulting in loss to the Government. Therefore, this contention of the petitioners also does not absolve the petitioners from the liability. 10. Thirdly, it was contended that there was inordinate delay in finalising the proceedings. Counsel points out that the work was completed on 29/3/83, inspection was conducted on 11/6/83, Ext.P1 memo was issued on 24/1/85 and that for no reason whatsoever, proceedings were delayed and Ext.P4 was issued only on 24/11/95. Ext.P4 was set aside by Ext.P5 judgment OP 28557/99 :9 : and Ext.P6 is issued only on 18/8/99. True, since the work was completed in 1983 and as final order was issued in 1995 and 1999, there has been a delay in this matter. However, unlike in a case where an employee has been placed under suspension and a belated enquiry is held and punishment has been imposed with inordinate delay, this is a case where proceedings were initiated only for recovery of the actual loss that was caused to the Government. A reading of the impugned order also shows that not even interest has been levied on the petitioners. Further, petitioners have no case that by lapse of time, any evidence which they wanted to rely on, was lost. If that be so, by reason of the alleged delay, petitioners cannot say that they were prejudiced in any manner. Therefore, I am not persuaded to invalidate the proceedings accepting the contention that there is delay on the part of the respondents in concluding the proceedings. 11. Having considered the aforesaid three contentions raised by the counsel for the petitioners, I do not find any merit in any one of them. Original petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp