Anish Jose Antony vs State Of Kerala
2021 Latest Caselaw 9854 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

            THE HONOURABLE MR.JUSTICE V.G.ARUN

WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                 WP(C).No.2031 OF 2021(D)


PETITIONER/S:

           ANISH JOSE ANTONY
           AGED 30 YEARS
           S/O. SHRI K. C. ANTONY, STUDENT, KAITHACKAL
           HOUSE, CHEMMALAMATTOM P. O., ERATTUPETTA VIA,
           KOTTAYAM DISTRICT, PIN - 686 508.

           BY ANISH JOSE ANTONY(PARTY IN PERSON)

RESPONDENT/S:

     1     STATE OF KERALA
           REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
           PUBLIC WORKS, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM - 695 001.

     2     THE SECRETARY
           DEPARTMENT OF PUBLIC WORKS, GOVERNMENT
           SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

     3     THE CHIEF ENGINEER (ADMINISTRATION)
           KERALA PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE
           COMPLEX, MUSEUM P. O., THIRUVANANTHAPURAM, PIN
           - 695 033.

     4     THE DEPUTY SUPERINTENDENT OF POLICE
           VIGILANCE AND ANTI - CORRUPTION BUREAU,
           KOTTAYAM - 686 002.

            R1-4 BY GOVERNMENT PLEADER
OTHER PRESENT:

           SR.PP.K.V. MANOJKUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09-03-2021, THE COURT ON 24-03-2021 DELIVERED THE
FOLLOWING:
 W.P.(C) No.2031 of 2021
                                 2



                           JUDGMENT

Dated this the 24th day of March, 2021

The petitioner had filed Ext.P1 complaint

(Crl.M.P.No.194 of 2020) before the Court of

Enquiry Commissioner and Special Judge

(Vigilance), Kottayam ('the Vigilance Court' for

short), alleging misappropriation of public funds

by officials of the Public Works Department, in

connection with the construction of the Moonnilavu

- Chakkikavu Road in Kottayam District. Finding

substance in the complaint, the Vigilance Court

directed production of prosecution sanction under

Section 19 of the Prevention of Corruption Act

("the Act" for short). Thereupon, the petitioner

filed Ext.P3, seeking sanction from the

Government. The petitioner is aggrieved by the

delay in considering Ext.P3 and granting sanction W.P.(C) No.2031 of 2021

to prosecute the accused.

2. In the statement filed by the Deputy

Superintendent of Police, Vigilance and Anti-

Corruption Bureau, Kottayam (fourth respondent),

it is stated that the petitioner had earlier filed

Crl.M.P.No.142 of 2019 before the Vigilance Court,

wherein the allegation was regarding non-payment

of Rs.66 lakhs due to the original contractor,

towards construction of the Moonnilavu -

Chakkikavu Road. It was alleged that the attempt

of the PWD officials was to divert that payment to

the subsequent contractor, by making it appear

that the entire work was carried out by the new

contractor. The Vigilance Court had directed the

Superintendent of Police, V&ACB, to verify the

authenticity of the allegations in that complaint.

Accordingly, a surprise check was conducted and it

was revealed that the PWD officials had not W.P.(C) No.2031 of 2021

committed any irregularity in connection with the

work in question and therefore, no offence under

the Act is made out. The details of the work

revealed during the surprise check, are as under:

The Government of Kerala had issued

administrative sanction of Rs.7,80,00,000/- for

construction of the Moonnilavu-Kadapuzha-

Mudikkunnu-Mechal-Thoranathumkunnu- Chakkikavu

road. The PWD awarded the work to the Kerala State

Construction Corporation Ltd (KSCC) for

Rs.7,30,27,576/- and an agreement was executed on

10.07.2014. The period for completion as per the

agreement was 16 months. The KSCC engaged a sub-

contractor named K.C.Antony for executing the

work. The KSCC failed to complete the work, in

spite of extending the period for completion.

Hence, the PWD terminated the agreement, after

recording the measurements. The remaining work W.P.(C) No.2031 of 2021

was awarded to another contractor

(K.R.Radhakrishnan) pursuant to a fresh tender.

3. The petitioner is the son of K.C.Antony,

the sub-contractor engaged by the KSCC. The

termination of the contract with the KSCC resulted

in the petitioner's father sustaining loss and

that apparently is the reason behind the

complaints. In his reply affidavit, the petitioner

has stated that he had approached the V&ACB with

two main allegations; (i) that the accused

officials had prepared estimate for the new work

and had tendered, awarded and entered into an

agreement with another contractor without

recording the entire works carried out by the

previous contractor. (ii) The attempt of the

officials is to misappropriate public funds by

entering the works carried out by the original

contractor in the measurement book with respect to W.P.(C) No.2031 of 2021

the work done by the subsequent contractor. It is

pertinent to note that the petitioner has not

denied the allegation that he had filed the

complaints aggrieved by the termination of work

awarded to the KSCC, which had resulted in his

father losing the sub-contract.

4. A careful consideration of the pleadings

and the reliefs sought reveal absolute lack of

bona fides on the part of the petitioner. The

petitioner ought to have stated the entire facts

in his writ petition, including the fact that the

work was earlier awarded to his father on sub-

contract by the KSCC. This material fact being

deliberately suppressed, the petitioner rendered

himself ineligible for any relief, in exercise of

the discretionary jurisdiction under Article 226

of the Constitution of India. Even though the

petitioner should be mulcted with cost, I refrain W.P.(C) No.2031 of 2021

from doing so considering that the petitioner is

a budding lawyer and is trying to espouse his

father's cause.

For the aforementioned reasons, the writ

petition is dismissed. The parties to suffer

their respective costs.

Sd/-

V.G.ARUN JUDGE Scl/ W.P.(C) No.2031 of 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CRIMINAL M.P.FILED BEFORE THE HON'BLE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) KOTTAYAM ON 24.02.2020.

EXHIBIT P2 TRUE COPY OF THE ORDER OF THE HON'BLE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) KOTTAYAM ON 22.09.2020.

EXHIBIT P3 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT 2 AND RESPONDENT 3 DATED 13.10.2020.

EXHIBIT P4 TRUE COPY OF THE POSTAGE DELIVERY RECEIPT FOR THE APPLICATION SUBMITTED BEFORE RESPONDENT 2.

EXHIBIT P5 TRUE COPY OF THE POSTAGE DELIVERY RECEIPT FOR THE APPLICATION SUBMITTED BEFORE RESPONDENT 3.

EXHIBIT P6 TRUE COPY OF THE LETTER SEND BY THE GENERAL MANAGER, KERALA STATE CONSTRUCTION CORPORATION LTD., REPORTING SERIOUS MISAPPROPRIATIONS COMMITTED BY VARIOUS PWD OFFICIALS INCLUDING THE ALLEGATION CONTAINED IN CRL.M.P.194/2020 TO THE CHIEF ENGINEER AND TO THE SUPERINTENDING ENGINEER KERALA PWD ROADS THIRUVANANTHAPURAM VIDE LETTER NO.CC/RGTVM/14/2014/284 DATED 11/11/2020.