IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9568 of 2002 SRI BHAGWAN SINGH SON OF LATE GHAMANDI SINGH OF GAJADHAR GANJ, P.S. BUXAR TOWN, DISTRICT BUXAR ………….PETITIONER Versus 1.THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, BUXAR 3. BUXAR NAGAR PARISHAD, THROGH ITS EXECUTIVE OFFICER, BUXAR 4. DEPUTY DEVELOPMENT COMMISSIONER, BUXAR 5. EXECUTIVE ENGINEER, RURAL DEVELOPMENT SPECIAL DIVISION I, BUXAR ……….RESPONDENTS with CWJC No.9657 of 2002 SRI BHAGWAN SINGH SON OF LATE GHAMANDI SINGH, RESIDENT OF MUHALLA GAJADHAR GANJ, P.S. BUXAR TOWN, DISTRICT BUXAR ………….PETITIONER Versus 1.THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, BUXAR 3. BUXAR NAGAR PARISHAD, THROGH ITS EXECUTIVE OFFICER, BUXAR 4. DEPUTY DEVELOPMENT COMMISSIONER, BUXAR 5. EXECUTIVE ENGINEER, RURAL DEVELOPMENT SPECIAL DIVISION I, BUXAR 6. SUBDIVISIONAL OFFICER, BUXAR ……….RESPONDENTS with CWJC No.9569 of 2002 JITENDRA SINGH SON OF SRI JAGDISH SINGH, RESIDENT OF VILLAGE NADIR GANJ, P.S. KUSAN SARAI, DISTRICT BUXAR. ………….PETITIONER Versus 1.THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, BUXAR 3. BUXAR NAGAR PARISHAD, THROGH ITS EXECUTIVE OFFICER, BUXAR 4. DEPUTY DEVELOPMENT COMMISSIONER, BUXAR 5. EXECUTIVE ENGINEER, RURAL DEVELOPMENT SPECIAL DIVISION I, BUXAR 6. SUBDIVISIONAL OFFICER, BUXAR ……….RESPONDENTS ----------- For the petitioners : Mr. Yogesh Chandra Verma, Sr. Advocate Mr. Parmanand Pd.Narain Sahi, Advocate For the State : Mr.Shashi Bhushan Kumar, SC 16 For the Nagar Parishad: Mr. Prabhat Kumar Sinha, Advocate 9 12.1.2010 All these three writ petitions namely C.W.J.C.No.9568 of 2002, C.W.J.C.NO.9657 of 2002 and C.W.J.C.No.9569 of 2002 are heard together 2 for disposal. In C.W.J.C.no.9568 of 2002 and C.W.J.C.No.9657 of 2002 one Shri Bhagwan Singh is the common petitioner, whereas in C.W.J.C.No.9569 of 2002 one Shri Jitendra Singh is the petitioner. In C.W.J.C.No.9568 of 2002, the petitioner prays for quashing of the memo no.829 dated 10.8.2002 passed by the District Magistrate, Buxar addressed to the Executive Officer, Nagar Parishad, Buxar for realisastion of the recoverable amount to the tune of Rs.27,000/- from the agent and for depositing the same in the Nazarat with 10% of penalty. It was further directed that in case the recoverable amount is not deposited, an F.I.R. be lodged. The petitioner further prays for quashing the consequential order contained in letter no.95 dated 12.8.2002 issued by the Executive Officer, Nagar Parishad, Buxar . The petitioner states that he is a Junior Engineer and at the relevant time his services was placed with the Nagar Parishad, Buxar. Some of the scheme known as Gandhi Market plan was undertaken under the M.P. Quota of local M.P. which was entrusted to him for execution. A copy of the work order has been annexed at Annexure-1. The petitioner states that in compliance with the work order, he undertook the aforesaid work which was verified by the Assistant Engineer and the Executive Engineer as well as the Special Officer of the Municipality and was found to be satisfactory. However, the District Magistrate vide his memo no.1372 dated 27.6.2001 informed him that certain irregularities have been committed in execution of the work mentioned therein and as such explanation was sought in respect of the same. The petitioner filed his detailed show cause vide 3 Annexure-3. The petitioner received another letter from the District Magistrate, Buxar bearing letter no.1842 dated 3.11.2001 wherein it was stated that on verification of the materials used in construction of the project and the test report of the laboratory, it transpired that cement had not been used in correct proportion. It is further stated that during the inspection it was found that there was crack in the shade and only 851 bags of cement have been shown to be used and as such a sum of Rs.27,000/- of government money has been misappropriated. The petitioner was directed to deposit the aforesaid amount, failing which an F.I.R. would be lodged. Thereafter, the District Magistrate on 10.8.2002 issued another letter wherein he has stated that it is established that sub-standard materials have been used in the construction. It was further stated that in spite of direction to deposit the money, the same has not been deposited by the petitioner and as such this letter was being issued to him by way of warning that in case he does not deposit the aforesaid amount, F.I.R. would be instituted against him besides certificate proceeding and framing of charge for initiation of a departmental proceeding. In C.W.J.C.No.9657 of 2002 the scheme under Natural Slum Development Programme (in short NSDP) was entrusted to the petitioner for its execution. The petitioner states that he completed the work to the satisfaction of the Assistant Engineer and the Executive Engineer of the Nagar Parishad. He submits that at the instigation of vested interest, the District Magistrate issued letter no.833 dated 10.8.2002, stating therein that on spot inspection the work of the petitioner was found to be sub-standard. Further more wrong entry has been shown in the measurement book and a s 4 such a direction was issued to deposit the recoverable amount failing which F.I.R. and certificate proceeding would be lodged and charges would be framed for initiation of a departmental proceeding. In C.W.J.C.no.9569 of 2002 the petitioner is one Jitendra Singh. He prays for quashing the order dated 10.8.2002 contained in letter no.832 issued by the District Magistrate, Buxar addressed to the B.D.O., Buxar for realization of the recoverable amounts from the petitioner failing which an F.I.R. would be lodged against him. The petitioner also prays for quashing the consequential order dated 13.8.2002 issued by the B.D.O., Buxar contained in memo no.910 asking the petitioner to deposit a sum of Rs.33,975/-. The petitioner states that he is a Panchayat Sevak under Buxar Block. He was entrusted to construct a drainage from the Bazar Samiti More to Saifan under M.P. quota. The estimated amount of the aforesaid scheme was Rs.8,67,000/-. The work was to be done departmentally. The petitioner states that on the complaint made by some vested interest, the District Magistrate issued a letter no.832 dated 10.8.2002 stating therein that on inspection and laboratory test of the materials used in the construction of drainage, it was found that some sub-standard materials were used in executing the project and as such the petitioner had misappropriated the government money of Rs.33,915/-. The petitioner was directed to deposit the aforesaid amount failing which similar consequences as narrated in the case of Shri Bhagwan Singh would follow in his case as well. In all the three cases the petitioners filed their show cause. The petitioners have assailed the impugned orders passed by the District 5 Magistrate on the ground that the District Magistrate has no jurisdiction to pass the impugned orders as the petitioner Sri Bhagwan Singh was working under the Nagar Parishad. Any action against him could be initiated only by the authorities under the Municipality and that too under the provision of Municipal Law. The District Magistrate cannot give direction either for initiating a departmental proceeding or for recovery of the amount or even for lodging of the F.I.R. The petitioners state that the inspection was made behind their back and in derogation of the guide lines of Bureau of Indian Standard, particularly clause 3.32 and other clauses. They submit that even the show cause filed by them had not been considered. Counsel for the respondent Nagar Parishad in case of petitioner Sri Bhagwan Singh states that pursuant to the letter of the District Magistrate, the petitioner was directed to deposit the recoverable amount under both the schemes, failing which F.I.R. would be instituted. As the recoverable amount was not deposited, the F.I.R. was lodged on 2.9.2002 and 3.9.2002 in both the cases, as contained in Annexure-2 to the counter affidavits filed on behalf of the Nagar Parishad in C.W.J.C.No.9568 and 9657 of 2002. It would appear from the counter affidavit filed by the Nagar Parishad that at the time of entrustment of scheme, the Parishad stood superseded and the impugned order was passed after giving show cause to the petitioners. The State too has filed counter affidavits in all the three cases. In C.W.J.C.No.9568 of 2002 it has been stated that the Junior Engineer of the Municipality, Buxar was appointed as an executing agent of the scheme “Construction of Sevak Nala in Buxar Town”from N.S.D.P. Central 6 Government fund. On the basis of the analytical report of the samples, so collected by a team of Senior A.D.M. and Technical Officer of Executive Engineer rank, the petitioner was informed and show caused that the sub- standard materials were used in execution of the project and as such the petitioner was directed to deposit the recoverable amount. It was submitted that the work under N.S.D.P. was funded by the Central Government as per the circular and direction of the N.S.D.P. issued from time to time by the Central Government. The execution of the work was to be done departmentally and the same was assigned to Special Officer, Buxar who entrusted the execution of the work to the Junior Engineer of the Municipality. As per direction a surprise checking of the scheme are to be done in order to ensure the quality of work as per the estimate sanctioned. On certain confidential information, the inspection team comprise of Senior officers of both technical as well as administrative side made surprise check of the sample of the work done and on chemical analysis the same was found to be sub-standard. Similar plea was taken by the State in the other two writ petitions namely C.W.J.C.Nos. 9657 and 9569 of 2002 which were being funded from M.P. Fund. Counsel for the respondent State submits that the District Magistrate was well within his jurisdiction to issue the impugned order. He submits that neither the work in question was the project of the Municipality nor the same was executed from the Municipal fund. As the money was funded by the Central Government under N.S.D.P. scheme or the M.P. fund, a District Magistrate was very much authorized to supervise the same. He further 7 submits that show cause was given to the petitioners in all the three writ petitions. This court finds that the main issue is whether the District Magistrate has jurisdiction to issue the impugned order directing the petitioners to deposit the recoverable amount found allegedly misappropriated by them in course of execution of the work and whether the District Magistrate was competent to order for initiation of a departmental proceeding and for lodging of the F.I.R.? It would appear from the counter affidavit of the State that the scheme which was being executed by the petitioners were schemes under the M.P. fund and N.S.D.P. Scheme. The fund was ultimately provided by the Central Government and the District Magistrate would be the supervising authority in respect of execution of the work in view of circulars issued from time to time as stated in affidavit of respondent nos.2 to 4 and not denied by the petitioners. On surprise spot inspection of the site done by the Senior officers of the administrative and technical sides found certain irregularities in execution of the works, besides using of sub- standard materials. The sub-standard quality of materials also stood affirmed from the test conducted in the laboratory. The projects in question were not the project of the Nagar Parishad nor any fund was provided by it. The work was to be entrusted departmentally and the District Magistrate assigned the execution of the work in question to the Special Officer of the Municipality who in turn directed the petitioners to execute the work in question. It was, therefore, within the jurisdiction of the District Magistrate to supervise the execution of work. Thus, I do not find that the District 8 KHAN Magistrate lacked jurisdiction in issuing the impugned order. The other issue is whether the finding of the District Magistrate would be a conclusive proof of the allegations that the petitioners were found guilty of using sub-standard materials. The findings recorded by the District Magistrate would not be conclusive and would be rebuttable and subject to the materials that the petitioners would produce in course of a proceeding. Having heard counsel for the parties and on going through the materials on record, this court observes that it would be open to the petitioners to place forth their points in any proceeding or trial that alleged inspections were done behind their back and the impugned finding was recorded without referring to his show cause. The impugned order has been issued by the District Magistrate on prima facie finding that the petitioners have committed irregularity and illegality and as such directed for institution of the F.I.R. which is very much permissible. It is made clear that this court is not expressing any opinion on the merit of these cases. With the aforesaid observations and directions, these writ petitions stands dismissed. (S.P.Singh,J)