WP(C) 478/2009 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI All the writ petitions were considered together in view of the challenge made therein being identical. I have heard Mr P Pathak, learned senior counsel for the petitioners in each of the cases and Mr P Talukdar, learned Standing Counsel, Water Resources D epartment. I have also perused in detail the contents of the file bearing No. WR (E ) 54/08. The challenge in each of the writ petitions is against identical orders dated 29.8.2008 passed by the Secretary to the Govt. of Assam, Water Resources D epartment by which the petitioners in each of the case have been placed under su spension. A perusal of the file bearing No. WR(E)54/08 placed before the Court ind icates that on 27.5.2008 the Deputy Commissioner, Lakhimpur had sent a detailed letter, inter alia, to the Principal Secretary to the Chief Minister of the Stat e highlighting the anti-erosion measures adopted by the Water Resources Departme nt at Matmara indicating the low quality of the works, which in his comprehensio n, is likely to be ineffective. On 28.5.2008, the Deputy Commissioner addressed a WT message to the different authorities including the Principal Secretary to t he Hon’ble Chief Minister of the State informing the said authorities that on th at day the Jiadhal embankment had been breached. The aforesaid information on being placed before the Chief Minister, the Chief Minister of the State on 9.6.2008 ordered constitution of a Two Member Co mmittee consisting of Sri P.P. Verma, Addl. Chief Secretary of the State and Sri AK Dutta, Chairman, Assam State Pollution Control Board for due enquiry into: (a) Quality of works undertaken by Water Resource Department at Jiadhal emba nkment in Dhemaji District which breached on 28th May, 2008 as reported by Deput y Commissioner, Dhemaji vide his WT Message No. DCL-15/2008/1 Dated 28/5/2008 (c opy enclosed) and to find out if the breach was due to any lapse on part of any officer of the Water Resource Department and also to fix responsibilities if the re was lapse. (b) Committee will also enquire into the quality of on going erosion protect ion works carried out by Water Resource Department on Brahmaputra Dyke at Matmar a in Lakhimpur District with reference to the report dated 27th May, 2008 of the Deputy Commissioner, Lakhimpur (copy enclosed) and to report whether works are executed as per specification and if there is any lapse on part of any officers of the Water Resource Department during execution of the works and also to fix t he responsibilities if there is any such lapse. On 11.6.2008, the Two Member Committee, as ordered by the Chief Minister, was co nstituted. The said Committee visited Matmara and Jiadhal embankment on 22.6.200 8 and 23.6.2008 respectively. The members of the Committee along with the offici als of the department inspected five different schemes of the work at Matmara an d also the works at Jiadhal. Eventually on 29.7.2008, the report of the said Com mittee was submitted to the departmental Commissioner & Secretary. It may be rel evant herein to reproduce below the conclusion reached by the Committee as state d in the report as well as the findings of the Committee with regard to the resp onsibility of the officers:- Conclusion : The Committee as per the mandate given to it, studied the work of the on -going projects at Matmara and Jiadhal embankments. The detail observations and findings have been mentioned above. In brief the following observations are made to summarize the position:- (1) At Matmara and Madarguri two works under FDR and one under M&R, were in progress. In case of the works under FDR the progress was not as per the estimat e though they have been declared complete and there was no possibility of any fu rther progress. Under these circumstances the works will not yield desired resul ts and the expenditure thereof would be wasteful. However the work under M&R was still ongoing and therefore no comments can be made. (2) The estimates for both the FDR works viz at Matmara and Modarguri, were found to be excessively inflated and reflect malafide intentions. (3) The quality of earthwork was poor and in violation of the technical spec ification and the estimates. This has resulted into poor quality of construction . This also would lead to misappropriation of funds if the entire estimated amou nt is released. (4) The ring bund at Matmara is a superb example of misplaced planning which has caused a hospital intended to be protected from flood inundation, to become an island in a lake. This work is a total waste of Govt. money and the executi on was also not as per the estimate. The claim of putting 1990 numbers of porcup ines in a record period of 5 days is not only unbelievable but also is a case of misappropriation. (5) The inundation of NH 52 as reported by Deputy Commissioner, Dhemaji was not due to any breach but was due to unprotected flow of river towards the very low lying road. However the cofferdam was washed away in a different place but i t had little to do with this inundation. (6) The execution of breach closing work at Jiadhol under FDR was another ca se of misplaced planning and preparation of inflated estimates which could never have been executed in time available given the speed and other working factors available locally. As a result of this, the progress work was poor and 100% comp letion of the work was impossible. (7) The closeness of the work to the river bank was startling in case of Jia dhal and the officers who designed the alignment must be held responsible for th e ultimate washing away of this portion on 4.7.08. Responsibility of officers : The Committee’s observations have been discussed above along with the co nclusions. Incumbency for each of the work has also been listed yet to be on the safer side it is felt that the responsibilities on any individual may be fixed after further scrutiny of incumbency list by the department. The Committee felt that, broadly following persons are responsible for the lapses concluded by the Committee:- (a) For preparation of inflated estimates the officers in preparation, check ing and approval should be held responsible and proceeded against. (b) For unspecified execution of works against the stipulations of the estim ates the officers responsible for such execution, supervision at different level should be held responsible and proceeded against. (c) For misplaced planning as in case of the ring bund at Matmara, the Execu tive Engineer and other senior officers who approved the project should be held responsible and proceeded against. (d) For not submitting the certified copy of the measurements of collected m aterials for the scheme of inspection path to the Quality Control Wing, the Exec utive Engineer concerned may be held responsible and proceeded against. Thereafter, a detailed note was prepared by the departmental Deputy Secr etary who suggested for initiation of departmental proceedings against all the e rring officials. The file eventually reached the table of the Chief Minister who on 26.8.2008, approved the proposal for initiation of departmental proceeding b ut with the further order that all the officers involved should be placed under suspension. Thereafter, an exercise was carried out to identify the officials re sponsible for the works at Matmara and Jiadhal embankment and on completion of t he exercise, suspension of eleven officers of different ranks commencing from Su perintending Engineer to Junior Engineer was ordered which included the petition ers in this group of cases. The file placed before the Court also indicates that the draft charges against each of the officers including the present petitioner s have been submitted to the departmental Secretary on 26.11.2008. However, no f urther action in the said matter could be taken, perhaps, because the file had r emained in the custody of the learned Standing Counsel, Water Resources Departme nt in connection with an earlier proceeding i.e. WP(C) 5152/2008 and, thereafter , in connection with the present cases. The Court has noticed that in the earlier proceeding referred to above i .e. WP(C) 5152/2008 which was instituted by one Sri Harendra Nath Talukdar, Exec utive Engineer, this Court had observed that the file placed before the Court ha d not prima facie indicated any involvement of the said petitioner. It is primar ily on the basis of the aforesaid order of this Court that the petitioners seek a similar order, as made in WP(C) 5152/2008. The proceeding in WP(C) 5152/2008 pertaining to Sri Harendra Nath Talukd ar was in respect of allegations of preparation of estimates. It is, perhaps, in the context of the aforesaid allegations that this Court in its order dated 6.1 .2009 had recorded a prima facie view with regard to the availability of materia ls in the file. The allegations against the present petitioners are not in respe ct of preparation of estimates though a recital to the said effect had been made in the impugned orders of suspension dated 29.8.2008. A reading of the report o f the Two Member Committee dated 29.7.2008 would clearly indicate that the invol vement of the present petitioners is with regard to the execution and supervisio n of the works. In such a situation having regard to the contents of the file, i t is not possible for the Court to record a similar view against the petitioners , as has been recorded against the petitioner in WP(C) 5152/2008. Beyond the abo ve, the Court does not consider it necessary or prudent to record any further ob servation keeping in mind that a departmental proceeding against the petitioners is in the offing and any observation of the Court may prejudice the petitioners in the said proceeding. The facts stated above, however, are considered sufficient to generate t he requisite satisfaction in the Court that none of the present writ petitions c hallenging the orders of suspension are fit and appropriate for being entertaine d by the Court. All the writ petitions are consequently dismissed. The file bearing No. WR(E)54/ 2008 be sent to the department forthwith by the learned departmental counsel whe reafter the authorities in the department will proceed to take the necessary act ion against the petitioners as would be required under the law. Needless to say that the departmental proceeding against the petitioners should be disposed of within the earliest possible time keeping in mind the public inte rest involved.