Madhya Pradesh High Court
Ashish Tiwari vs The State Of Madhya Pradesh on 24 August, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 24th OF AUGUST, 2023
WRIT PETITION No. 27089 of 2018
BETWEEN:-
ASHISH TIWARI S/O DR. V.K. TIWARI, AGED
ABOUT 51 YEARS, OCCUPATION: REGISTERED
CLASS A/2 CONTRACTOR R/O 1447, RANI
DURGAVATI WARD, GARHA (MADHYA PRADESH)
.....PETITIONER
(BY MS. MANJIT P.S. CHUCKAL -ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
1. SECRETARY VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
CHIEF ENGINEER RANI AVANTI BAI LODHI
2. SAGAR PROJECT BARGI HILLS JABLPUR
(MADHYA PRADESH)
SUPERINTENDENT ENGINEER RANI AVANI BAI
3. LODHI SAGAR PROJECT CANNAL CELL BARGI
HILLS (MADHYA PRADESH)
EXECUTIVE ENGINEER RANI AVANTI BAI
4. LODHI SAGAR PROJECT LBC DIVISION NO. 2
BARGI HILLS (MADHYA PRADESH)
COLLECTOR JABALPUR DISTT. JABALPUR
5.
(MADHYA PRADESH)
TEHSILDAR GORAKHPUR, DISTT. JABALPUR
6.
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DEVDATT BHAVE -PANEL LAWYER FOR RESPONDENT/STATE)
................................................................................................................................................
Reserved on: 20.07.2023
Pronounced on: 24.08.2023
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
2
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:
ORDER
The pleadings are complete.
With the consent of the parties, the matter is finally heard.
2. This instant petition is under Article 226 of the Constitution
of India claiming following reliefs:-
(i) The Hon'ble court may be pleased to call for the entire
record pertaining to Annexure P-1;
(ii) The Hon'ble Court may be pleased to quash the
impugned communication dated 09.05.2018 (Annexure P-1);
(iii) The Hon'ble Court may be pleased to direct the
Respondents to release Rs.2,61,000/- which has been
forfeited and the balance amount of Rs.14,58,409/-;
(iv) The Hon'ble Court may be pleased to direct the
Respondent no.4 to pay compensation to a tune of
Rs.5,00,000/- for harassment.
(v) Any other relief or writ or direction or order which this
Hon'ble Court may deem fit and proper looking to the facts
and circumstances of the case be awarded to the Petitioner
including the cost of the petition."
3. The petitioner by the instant petition is challenging the
Annexure P-1 dated 09.05.2018 whereby the Executive Engineer issue a
letter to the Collector Jabalpur asking recovery of an amount of
Rs.11,15,607/- from the petitioner through RRC. The petitioner has
assailed this order on the ground that the respondents illegally and
without any foundation proposed recovery against the petitioner and
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
also not paid him amount for the work done. Petitioner was awarded
contract by the respondent and in pursuant to the said contract, he has
completed the work and submitted the bill for payment of the same and
respondent issued cheques for an amount of Rs.14,58,409/- outstanding
by him, which was to be paid by the respondent to the petitioner but
after issuing the cheques in favour of the petitioner, the same was
canceled by the respondent on the ground that some complaint made to
the higher officer against the work done by the petitioner and on the
basis of this complaint, amount has not been paid to the petitioner and
cheque has been canceled. Annexure P-2 are the cheques issued to the
petitioner but those cheques later on cancelled vide letter dated
04.12.2008. The petitioner challenged the present action of the
respondent mainly on the ground that before determining the fact
whether petitioner has not completed work awarded to him or the
recovery of Rs.11,15,607/- has to be initiated from him, the payment
which was to be made to the petitioner was not done and without any
enquiry or material available with the respondent impugned letter
Annexure P-1 has been issued asking the Collector to make the recovery
from the petitioner by way of revenue recovery. The petitioner has
mainly relied upon the order passed on 30 th October, 2014 in an enquiry
conducted against the officer of respondent-Department whereunder, the
charges levelled against the officers of the department that they have
made payment to the petitioner for the work not done by him and as
such they have caused loss to the government and given unauthorized
payment to the petitioner. Although in the enquiry conducted against
those officers, the disciplinary authority finally passed an order in
favour of the delinquent holding that the charges levelled against them
are without any foundation and prosecution failed to produce any
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
material during course of enquiry to prove the charges. On the contrary
order contains that whatever allegation made with regard to not
conducting work, nobody has stated so and as such it is found that the
work alleged not have been done was in fact carried out and statement
of the witnesses recorded are also of that nature.
4. Counsel for the petitioner submits that the enquiry
conducted by the department itself against the officers of the department
levelling the charge include that they have made unauthorized payment
to the petitioner was not found proved. In absence of any material
produced by the prosecution, therefore, the recovery proposed against
the petitioner is also illegal because department did not have any
material to substantiate that the petitioner did not carry out the work
which was awarded to him. According to the petitioner, the outstanding
amount of Rs.14,58,409/- and payment made to the petitioner by issuing
chequess but it was cancelled without any foundation. Only on the basis
of oral instruction of the higher officer.
5. Counsel for petitioner submits that in absence of any
foundation and material available with the respondent, the payment of
the petitioner cannot be denied.
6. Shri Devdatt Bhave, Panel Lawyer for State opposed the
submissions made by counsel for petitioner and relied upon the reply
submitted by the respondent and he submits that some enquiry got done
in the year 2009, in which the finding came against the petitioner and
also against the officers who have been charged and later on order have
been passed by the disciplinary authority vide order dated 30 th October,
2014. He submits that the said enquiry report is not before this Court
and therefore, it is difficult to ascertain as to whether the petitioner is
guilty of not completing the work of contract awarded to him or
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
recovery is illegal being done against the petitioner. He has also raised
an objection about the maintainability of the petition saying that it is
matter of contract and therefore, petitioner instead of filing this petition
under Article 226 of Constitution of India should avail remedy of
reference under section 7 of Madhya Pradesh Madhastham Adhikaran
Adhiniyam, 1983. He also submits that the show-cause notice was
issued to the petitioner i.e Annexure P-5 dated 25.11.2011 in which it is
alleged as to what illegality has been committed by the petitioner while
performing the contract. Though, reply of the said show-cause notice
was given by the petitioner but according to him that reply was not
satisfactory therefore, the recovery was proposed against the petitioner.
7. Counsel for the petitioner has also submitted that in pursuant
to the recovery proposed the amount of security was also forfeited by
the respondent, therefore, that amount also be refunded along with
interest.
8. I have heard counsel for the parties and also perused the
record.
9. Although counsel for the respondent has raised an objection
about maintainability of petition saying that dispute arising out of the
contract and therefore, petition is not maintainable but I am of the
opinion that the submission made by counsel for the respondent is
misconceived for the reasons that there is no material available with the
respondent for making recovery. Although committee conducted enquiry
and submitted its report wherein nothing illegal found on the part of
petitioner in the contract awarded to him and work carried out by him,
therefore, he is otherwise entitled to receive amount of work done. The
cheques have also issued in the year 2008, but later on cancelled only
because some complaint made to the Department. Under such
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
circumstance, when there is no disputed fact involved even in the matter
of contract writ can be issue. The Division Bench in case of Alok
Kumar Choubey Vs. State of M.P & others reported in 2021 (1)
M.P.L.J 348 relying upon several decision of the Supreme Court and
has observed as under:-
"16. Seven well recognized exceptions to the rule of
alternative remedy, which can be culled out from the afore-
discussed judgments of the Supreme Court for entertaining
a writ petition under Article 226/227 of the Constitution,
can be summarized thus: (i) where the writ petition has been
filed for enforcement of fundamental rights; (ii) where there
has been violation of principle of natural justice; (iii) where
the order of proceedings is wholly without jurisdiction; (iv)
where the vires of any Act is under challenge; (v) where
availing of alternative remedy subjects a person to very
lengthy proceedings and unnecessary harassment; (vi)
where the writ petition can be entertained despite alternative
remedy if the question raised is purely legal one, there
being no dispute on facts; and (vii) where State or its
intermediary in a contractual matter acts against public
good/interest unjustly, unfairly, unreasonably and
arbitrarily. Despite afore-noted exceptions, especially fifth
and seventh of the above, whether or not in a particular case
the writ court should entertain a petition under Article
226/227 of the Constitution of India rather than requiring
the petitioner to avail alternative remedy, would always
depend on the facts situation of a given case, upon the
petitioner making out a strong case. If it is shown that the
facts of the case are not disputed and the Government or its
instrumentality has been found acting unjustly, unfairly and
unreasonably even in regard to its contractual obligations,
the High Court would be justified in entertaining the writ
petition despite availability of alternative remedy."
(emphasis supplied)
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
In the present case, it is apparent that the facts are not
disputed on the basis of admitted fact and observing that the action of
the respondents are arbitrary as they are denying the payment of the
petitioner without there being anything against the petitioner. The
petition can be entertained though it relates with the contract matter.
10. After perusal of the record and considering the submissions
made by learned counsel for the parties, it reveals that the petitioner was
given contract by the respondents and agreement executed vide
agreement No.08/D.L./2007-08 and it is alleged by the impugned letter
dated 09.05.2018 (Annexure P-1) that the said work has not been
completed by the petitioner and as such it is decided to recover an
amount of Rs.11,15,607/- through RRC.
11. The respondent department have also prepared the cheques
but before issuing the same that got cancelled not handed over to the
petitioner as note appended thereof that complete payment will be made
after checking the work done by the petitioner by the higher authorities.
A letter dated 26.12.2008 indicating that those cheques were prepared
but not handed over to the petitioner and that in information was
collected by the petitioner applying under Right to Information Act. A
letter dated 13.03.2009 (Annexure P-3) written to the Collector by
Executive Engineer asking him to recover an amount of Rs.11,15,607/-
because the total amount as per officer was Rs.13,77,257/- out of which
they have deducted Rs.2,61,650/- as earnest money and security deposit
said to have been forfeited by the respondent Department. The
registration of the petitioner as a contractor of A-2 Category was also
cancelled. By filing a petition i.e W.P No. 4246 of 2009, the action of
the respondent and letter dated 13.03.2009 was also challenged by the
petitioner and that petition was allowed vide order dated 18.05.2011.
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
The show-cause notice issued to the petitioner on 13.02.2009 has also
been quashed. The order of recovery and cancellation of registration was
also quashed and liberty although was granted by the Division Bench of
the High Court to the respondent department to take appropriate action
after issuing proper show-cause notice and after considering the reply of
the petitioner.
12. That the petitioner under RTI Act received a report
submitted by the Committee constituted by the respondent department
so as to ascertain the alleged irregularities of the work of the petitioner.
The said enquiry report is Annexure P-8 in which the Committee
consisting of two members i.e Superintendent Engineer and Executive
Engineer has given their opinion with regard to the work awarded to the
petitioner that though it is difficult to ascertain the exact irregularities in
absence of the relevant documents available but from the statement of
the resident residing over there information collected and as per their
statement work got done by the petitioner and order dated 30.10.2014
(Annexure P-9) is also received by the petitioner that was an order of the
disciplinary authority of the officers against whom disciplinary
proceeding initiated for the charges that they were involved with the
petitioner and other contractors and made payment to them without
being any work but in the said enquiry, it is found that the charges are
bogus and work was done and as such all those officers have been
exonerated. The said order of the disciplinary authority dated
30.10.2014 is also available on record as Annexure P-9. Thus, it is clear
that when there is nothing with the respondent saying that the petitioner
did not perform the contract and not completed the work but on the
contrary as per their own document, the respondents have not only
enquired about but found that the work got done by the petitioner and
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
there was no substance in the complaint made. Then there was no reason
to issue any order of recovery from the petitioner and that order even
otherwise is cryptic, vulnerable and passed without application of mind.
The order was in fact not a speaking order containing any reason.
13. There is no material available on record indicating that the
allegation made by the respondent against the petitioner is correct. Even
in the reply submitted by the respondent to the petition, no where it is
found as to on what basis the recovery is being proposed. In an enquiry
conducted by the Committee constituted, nothing found against the
petitioner and in disciplinary proceeding against the officers alleged to
have been involved in the fraud, nothing has come against them and all
charges are found false as nothing available with the prosecution to
prove anything against the officer or against the contractors.
14. The payments already made to the petitioner, cheques
issued but cancelled only on the basis of complaint. On the contrary, as
per the order dated 30th October, 2014 passed by the State Government
in a disciplinary proceeding initiated against the officers and
exonerating them from the charges, specific finding has come that the
work given to the contractors was found to have been done. Thus, it is
clear that the allegations and charges leveled against the petitioner are
without any foundation and in fact incorrect. Therefore, the recovery
proposed to be initiated against the petitioner by letter dated 09.05.2018
(Annexure P-1) is accordingly set aside. The amount for which the
petitioner was found entitled and cheques issued in his favour
amounting to Rs.14,58,409/- be paid to the petitioner. Further the
amount of security of Rs.2,61,000/- forfeited be also returned to him and
the petitioner is also entitled to get 6% interest on the aforesaid amount
from date of issuance of the cheque i.e 30.08.2008 till actual payment is
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
made to the petitioner. Accordingly the petition is allowed. No order as
to cost.
(SANJAY DWIVEDI)
JUDGE
tarun
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/24/2023
5:25:03 PM
