Kameshwar Prasad Gupta vs State Of U.P.& 3 Ors.
2013 Latest Caselaw 4968 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 42942 of 2013
 

 
Petitioner :- Kameshwar Prasad Gupta
 
Respondent :- State Of U.P.& 3 Ors.
 
Counsel for Petitioner :- Manish Goyal
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Manish Goyal, learned counsel for the petitioner at length and learned Standing Counsel for the respondents.

2. Learned Standing Counsel did not propose to file any counter affidavit since the arguments advanced by learned counsel for the petitioner are basically legal and he submitted that this writ petition may be decided after hearing the oral submissions as also the record of this writ petition itself and it is in these circumstances and with the consent of learned counsel for the parties, I proceed to hear and decide this matter finally at this stage under the Rules of the Court.

3. The petitioner, Kamleshwar Prasad Gupta, is a Junior Engineer in Public Works Department (hereinafter referred to as the "PWD"). He has been placed under suspension vide order dated 16.07.2013 (impugned order) passed by Engineer-in-Chief (Development) and Head of Department, Public Works Department, Lucknow on certain acts and omissions constituting misconduct, indication whereof has been given in the impugned order. It alleges that the work quality, standard and specifications of approach road and additional approach road to under construction bridge at Budi Rapti River, Riwanankar Khajurdarh Road was checked by a team constituted by the Chief Engineer, PWD Gorakhpur and in its fact finding report dated 26.06.2013 the team has found that average crust of approach road from Chainage 0 to 316 (in the center) was 22.17 cm instead of 25 cm which was less than 2.83 cm to the prescribed limit. This deficiency has caused a total loss of Rs. 88,635.70 to the public exchequer. For the serious financial irregularities for which petitioner has been found prima facie responsible, he has been placed under suspension in a contemplated disciplinary inquiry against him under U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "1999 Rules").

4. Sri Manish Goyal, learned counsel appearing for petitioner, contended that a mere loss to State Government does not amount to a misconduct on the part of a Government servant and, therefore, an order of suspension is bad in law. A Government servant can be placed under suspension only if a regular departmental inquiry would be justified against him in relations to certain acts or omissions constituting misconduct which are serious enough so as to attract a major penalty, in case such charge(s) is/are found proved, but for mere negligence, minor acts or omissions or a possible loss to Government exchequer, such exercise of power of suspension is uncalled for, impermissible and amounts to an abuse of power. He contended that the different in crust, unless is attributable to some act or omissions on the part of petitioner, constituting misconduct, cannot justify an order of suspension. In the present case there is no such allegations of serious nature so as to validate an order of suspension. It is also pointed out that in respect to a fact finding inquiry, certain guidelines have been laid down by Engineer-in-Chief, PWD Lucknow, vide circular dated 20.05.1987 (Annexure-5 to the writ petition) which has been reiterated in subsequent circular dated 16.05.2001 (Anenxures 4 to the writ petition) and the fact finding inquiry team, having not followed the said procedure, its report cannot be relied upon to pass an order of suspension. Referring to Rule 4, he pointed out that rule framing authority itself has provided that a Government servant shall not be placed under suspension unless charges levelled against him, if proved, may justify a major penalty. In the present case, even if the charge is proved, at the best it may justify an order of recovery which is a minor penalty and, therefore, the exercise of power on the part of Engineer-in-Chief in passing the impugned order is patently erroneous, illegal and contrary to Rules. In support of the aforesaid submissions he placed reliance on decisions of Apex Court in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and others, AIR 1975 SC 984 and Union of India and others Vs. J. Ahmed, AIR 1979 SC 1022 and two decisions of this Court in U.P. State Road Transport Corporation and another Vs. Abdul Gafoor, 2006(3) ESC 1985 (DB) and Dhirendra Singh Vs. Collector, Kanpur Dehat and others, 2008(3) ADJ 165.

5. Learned Standing Counsel, on the contrary, argued that the order of suspension is being read by learned counsel for the petitioner as if it is a charge sheet and with the assumption that whatever stated therein is sufficient to judge it on the anvil of allegations contained therein. He said that an order of suspension, as such, does not require recital of allegations/charges in detail, since it is not a charge sheet. The idea of giving a brief reference of acts and omissions which require regular departmental inquiry, against the Government servant, is only to tell the person concerned or if the occasion arise, in a judicial review, that the competent authority has pass order after application of mind and there is something which require a regular departmental inquiry. The brief mention of allegations in the order of suspension is not an entire charge in itself and, therefore, validity of order of suspension on the merits of charge cannot be judged by reading a bare order of suspension as that would amount to converting an order of suspension in a charge sheet which is not permissible either in law or otherwise. He submitted that a transaction on the part of a Government servant whether will amount to a serious act of misconduct or not, will have to be specified in detail in charge sheet and all its angles can be highlighted therein. Neither it is possible nor desirable nor is required in law to be done by reciting in an order of suspension. In fact, attempt on the part of petitioner, to challenge the order of suspension, by addressing the Court, in respect to correctness or the nature of charges, is nothing but an attempt to overreach an issue which is not permissible while judging an order of suspension. Judicial review of an order of suspension is confined to the grounds like, if, it is contrary to rules, not passed by competent authority or shown to be mala fide, but the merits of allegations treating the same to be a complete charge is beyond its purview. He submitted that none of the authorities cited at the bar in support of petitioner's case has any application in the present case. The circular issued by Engineer-in-Chief cannot be placed at part with a Government order referable to Article 162 of the Constitution. The status of a Government order is totally different than an office memorandum or a circular issued by an official of the department. The power of State Government in issuing executive orders referable to Article 162 read with Article 166 is co-extensive with the legislative power of the State but this principle is not applicable in respect to orders issued by authorities or officials of State Government. In respect to charges and allegations contained in the order of suspension he also pointed out various facets thereof which I shall discuss later on but having heard learned counsel for the parties and perusing the record, in my view, the arguments advanced on behalf of the respondents have substance and the impugned order of suspension is called for no interference. My reasons are as under.

6. The petitioner is a Junior Engineer. The officer is at the lowest echelon in the supervising engineering cadre in the department. He is the officer who is directly and physically connected with execution of work, to discharged by contractors or the labours of department. It is the Junior Engineer who regularly visits the site, check quality of work, make physical verification of measurement, verify the standard of work with prescribed specifications and submit his report. The next higher officer in the hierarchy is Assistant Engineer. He normally proceed on the basis of report submitted by Junior Engineer but to a limited extent and like a simple verification is supposed himself to go for verification of measurement etc. done by Junior Engineer. Higher in the cadre comes the Executive Engineer, Superintending Engineer, Chief Engineer and Engineer-in-Chief.

7. For the construction of roads etc., it is not in dispute that certain specifications are prescribed. Whenever a work commences, it has to meet those standards and specifications etc. The construction material used in the said work should also satisfy a particular specifications and quality. The expenses on such work, as a whole, are worked out taking into consideration the quality, length, breath and height, volute etc. of the work, and thereafter budgetary sanction is made for carrying out the aforesaid work. If there is a compromise either in the specifications of actual work or quality, standard of specification of material used or like any other thing, it would mean that the actual work done is not upto the prescribed specifications and the actual money spent is lesser than estimated.

8. The mere compromise in quality, standard, thickness etc. in the matter of a work like construction of a road by itself may not be said to be a serious misconduct, if the actual report and measurement of such work, submitted by Junior Engineer etc. commensurate with such actual specification of the carried out work, taking into account the compromising aspect, for the reason that actual expenses in such case would be less than the amount worked out before sanction of work, which was done by taking into consideration the prescribed standard, specification etc. If the actual work carried out at the site is of lesser specification or standard or quality etc., but the Junior Engineer verify it according to sanctioned and prescribed standard etc., then the expenses incurred are less but payment ensured is higher. Now the difference of money paid to executor of work, i.e., the contractor etc., is not something which will disappear in air. It is nothing but a compromise made with the quality of work which is bound to result in damage or deterioration of work quite speedier, causing severe loss, not only to public at large, but will also require further expenses from public exchequer, causing further loss to Government exchequer. It cannot be doubted that a contractor if allowed benefit it cannot be without any other interest of the officer concerned who is actually making verification of work. All these aspects will be demonstrated in detail when a detailed charge sheet is issued. Neither it is expected nor desirable that all such things should be mentioned in detail in the order of suspension itself.

9. The order of suspension herein clearly demonstrates that there is an act and omission on the part of officer concerned, which has caused loss to public exchequer and it is seriously fiscal irregularity. This is one of the aspect of matter.

10. The conduct of Government servant, if has caused such loss to Government exchequer, is a misconduct, i.e., unbecoming of a Government servant, lack of devotion in duty, which is a misconduct under Rule 3 of the U.P. Government Servant (Conduct) Rules, 1956.

11. In the present case the principal function of Junior Engineer is to check the work executed at site and submit report regarding its standard, quality and specifications.

12. It is not the case of petitioner that in his report, he has submitted less thickness of crust and, therefore, payment actually made on the basis of said measurement has not caused any loss to public exchequer. If at the site, the actual thickness of crust was less but the petitioner submitted report verifying a thick crust, apparently he has submitted a false report. Why he has done so is easily understandable. Nowadays nothing is in speculation. Submission of a false report is clearly a serious misconduct. If that is so, it cannot be said that the petitioner has not discharged his duties honestly. In such a case, his conduct would come within the term "a conduct unbecoming of a Government servant". It will also go to reflect upon his integrity which he must possess. Here is not a case of sheer omission but it is a case of commission of an act which, if proved, would show lack of integrity on the part of officer concerned. This will all be seen when charge sheet is issued.

13. The transaction which has been mentioned in the impugned order of suspension has various angles and what actually would come in the charge sheet, and evidence, cannot be judged at this stage. This Court would not be justified in pre-judging the entire issue, else the risk of helping scrupulous and dishonest engineering officers would be greater. We have to exercise a restrain in such matters so as not to become party to a misdeed of a Government servant, by helping him, in escaping from the clutches of valid legal proceedings, by pre-judging certain issues at a premature stage.

14. The decisions cited at bar in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab (supra), Union of India and others Vs. J. Ahmed (supra), U.P. State Road Transport Corporation and another Vs. Abdul Gafoor (supra) and Dhirendra Singh Vs. Collector, Kanpur Dehat (supra), therefore, have no application to the case in hand since it is not a case of mere inefficiency but here is a case which, if proved, would amount to serious misconduct.

15. Now coming to second part, that the fact finding inquiry having not followed the guidelines contained in Engineer-in-Chief's circular dated 20.05.1987 and 16.05.2001, therefore, the said report cannot be relied for passing impugned order of suspension.

16. The argument is substantially misleading and bereft of any merits at all. A fact finding inquiry is in the nature of preliminary inquiry. The principle of Evidence Act and principle of natural justice etc. are not at all attracted either at the stage of fact finding inquiry. It is only for the purpose of forming a satisfaction by the disciplinary authority, whether there is any act and omission on the part of a Government servant which amounts to a misconduct and require a regular inquiry or not. No right of a Government servant by such inquiry is affected in any manner. Therefore, to suggest that a fact finding inquiry having been conducted without participation or giving opportunity to Government servant, i.e., the petitioner in the present case, and, therefore, cannot be relied on, has no merit in law. Moreover, the circular or office memorandum issued by Engineer-in-Chief cannot be upgraded at the pedestal of a Government Order referable to Article 162/166 of the Constitution.

17. Lastly, even having gone through the circular dated 20.05.1987, I do not find that it lay down any procedure to be followed by department during a fact finding inquiry. The guidelines have been laid down for the assessment of actual quantity.

18. Thus, by no stretch of imagination it can be said that a fact finding inquiry report can be held to be non admissible for department authorities, in a disciplinary proceedings, only on the ground that aforesaid guidelines have not been followed.

19. The judgment of Apex Court in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab (supra) has no application in the present case since that was a case, where, in absence of statutory rules, relating to reckoning point of seniority, which is a condition of service of a Government servant, a Government Order was issued and it provided certain conditions of service. The executive power is co-extensive with legislative power, as recognised by Apex Court in Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549. In B.N. Nagarajan Vs. State of Mysore, AIR 1966 SC 1942 the Court said, where no statutory rules are made regulating recruitment or conditions of service, the State Government always can exercise its executive power and issue administrative instructions providing for recruitment and laying down conditions of service. It was also held so in Sant Ram Sharma Vs. State of Rajasthan, AIR 1967 SC 1910 and that has also been followed in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab (supra). The aforesaid judgment, therefore, has no application inasmuch as the circulars of Engineer-in-Chief are not the executive orders laying down any condition of service of a Government servant.

20. Even otherwise, at this stage this Court cannot prejudge that the fact finding report would necessarily be an evidence which would be relied in support of charges which are yet to be levelled in the charge sheet. The fact finding inquiry report not always constitute an evidence in a regular departmental inquiry unless the authorities decide otherwise. In such a case the delinquent employee will have adequate opportunity of defence in accordance with procedure prescribed in the rules. To look into this aspect of the matter, at this stage, again at the pain of repetition, I say, amounts to considering something at a premature stage when that occasion has not arisen at all.

21. It is not the case of petitioner that Engineer-in-Chief, who has passed impugned order, is not a competent authority or that petitioner is not liable for suspension in a contemplated or departmental inquiry or that the impugned order is vitiated on account of mala fide of anyone.

22. In view thereof and in the result, I do not find any ground to justify interference of this Court with impugned order of suspension, at this stage.

23. The writ petition is wholly devoid of merit. Dismissed.

Order Date :- 07.08.2013

AK