THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT PETITION No.20657 of 2017
ORDER:
This writ petition is filed to declare the Order No.28688/CE (MHA)/E3/GHMC/2017 dated 06.05.2017, issued by the respondent No.2, whereunder the petitioner was suspended pending enquiry.
2. It is the case of the petitioner that the impugned order is in violation of Articles of 14 and 16 of the Constitution of India and contrary to the instructions issued by the Government from time to time. The petitioner was appointed as Executive Engineer in the A.P. State Cooperative Rural Irrigation Corporation Limited, Hyderabad on 10.06.1996. He was transferred to the respondent No.2/Greater Hyderabad Municipal Corporation (GHMC) on 22.12.2000 along with 8 others on deputation basis. After joining GHMC, he was promoted as Deputy Executive Engineer on 14.07.2016. During monsoon season in 2016, the GHMC took up a plan to complete de-silting of SW Drains well before onset of monsoon to avoid water logging on the roads, flooding of low lying areas and traffic problems in GHMC limits. In order to carry out the de-silting work efficiently and to avoid inconvenience to public and criticism from all fronts, certain instructions were issued by the GHMC vide Circular No.GHMC/Engg/CE (M)/TA-II/K6/2016 dated 25.02.2016. Pursuant to the orders issued by the Commissioner, GHMC, the concerned Executive Engineers and S.Es of GHMC, have entered into contacts with certain Contractors in GHMC for de-silting of Nalas in Central Zone. As per para 7 of the circular dated 25.02.2016, the weighment at identified and designated weigh bridge by Executive Engineer only shall be taken and the Deputy 2 Commissioner has to arrange any one departmental personnel on shift basis for monitoring at the weigh bridge.
3. For the year 2016-17, the Executive Engineers have not identified any weigh bridge and the Deputy Commissioner has also not arranged any person for monitoring weighment at weigh bridge. The quantity of de-silting material has to be measured by the concerned Assistant Engineer in Cubic meter/Tonnes only. The transportation of de-silting material by any mode is irrelevant, as there is no designated weigh bridge and no designated person at the weigh bridge. Further, the concerned AE/AEE cannot accompany each and every carted vehicle up to the dumping yard and as per the circular dated 25.02.2016, it is not the duty of the AE/AEE. The Quality Control Cell, GHMC also inspected the work prior to the execution and after completion of the work, and they have submitted their reports satisfactorily. The concerned Zonal Commissioner, the SEs and EEs have also periodically inspected and monitored the progress of de-silting work and no irregularities have been noticed. The contractors completed the work as per the agreements and submitted the weigh bridge bills for payments. The Audit party of Central Zone, GHMC, scrutinized bills and raised certain objections stating that some of the vehicles used for carting of silt are fake and fabricated as the vehicle numbers mentioned in the weigh bridge bills are non-transport vehicles, Motor Cars, Auto Rickshaws on which silt cannot be transported. It is stated that some of the contractors while submitting the weigh bridge bills for payments have submitted certain fake and fabricated bills in the offices of the concerned EE in Central Zone and also used non-transportation vehicle numbers for claiming bills for transportation of de-silted material. The objections raised by the Audit came in local newspapers.
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4. Based on a complaint given by the Superintendent Engineer Central Zone, GHMC, Khairatabad dated 12.04.2017, a case in Cr.No.66 of 2017 under Sections 420, 467, 468, 471 read with Section 34 IPC was registered against the contractors with Central Crime Station, Hyderabad and investigation was taken up. The petitioner and others were summoned to CCS and the police arrested all of them. The petitioner was also shown as one of the accused. The petitioner was released on station bail on the same day.
5. It is the case of the petitioners that based on written information given by some lower officials, the then in-charge SE, who joined in the Central Zone recently at that time and who was aware of the instructions issued by GHMC and without even ascertaining the correct facts at the time of the execution of the work and without verifying the records, gave a complaint dated 12.04.2017. It is stated that the petitioner is no way responsible for shifting of dumping year. If there was any lapse, it was due to procedure irregularities in not taking weighment of de-silting material at dumping place also for the reason beyond the control of officials. But not illegality was committed by the petitioner or other AEs in the Central Zone.
6. It is submitted that to the memo dated 13.04.2017, issued by the Chief Engineer, explanation was submitted by the petitioner and others. The police conducted preliminary investigation against 23 AEs and 12 DEs but action was taken only against 13 AEs, who attended the CCS Police Station. Thereafter, 13 AEs including the petitioner were placed under suspension pending enquiry. The petitioner submitted that he was made a scapegoat, as the only allegation made in the impugned suspension order is that he was negligent in 4 discharging his duties for submitting the bills to the Audit without any proper scrutiny and not following the instructions dated 25.02.2016. It is further submitted that GHMC has indulged in selective suspension by placing only 13 AEs under suspension when the same is contrary to the judgment of the Supreme Court in K. SUKHENDAR REDDI v. STATE OF AP1. The authorities ought to have taken action against the contractors but illegally placed the petitioner under suspension.
7. Learned counsel for the petitioner submitted that in WP.No.19763 of 2017, filed by similarly placed persons, this Court directed the petitioner therein to be continued in service, however, giving liberty to the respondents to initiate disciplinary proceedings against the petitioner.
8. In the present case, impugned suspension order was stayed by this Court vide order dated 05.07.2017 in WPMP.No.25317 of 2017. The order is still in force. The respondents have not chosen to file their counter. The averments in the writ affidavit that there is selective suspension of few of the employees including the petitioner remained unrebutted. The learned Government Pleader fairly conceded that WP.No.19763 of 2017 was disposed of granting relief to the similarly placed person and the order is not appealed by the government. Thus, selective suspension resorted to by the respondent No.2 is arbitrary, discriminative and violative of Article 14 of the Constitution of India (see para 7 of K. SUKHENDAR REDDI's (supra).
9. In view of the above and also in the light of the fact that interim order dated 05.07.2017 is still in operation all through, this Court is of the considered opinion that the petitioner shall be continued in service. 1 (1999) 6 SCC 257 5 However, the respondents are granted liberty to initiate disciplinary proceedings in case they chose to proceed against the petitioner.
In the result, the writ petition is disposed of. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
__________________ B. VIJAYSEN REDDY, J November 15, 2021 DSK