Rajendra Nath Nayak vs State Of Odisha (Vigilance)
2023 Latest Caselaw 1378 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                      CRLMC No.396 of 2020

    Rajendra Nath Nayak                     ....             Petitioner
                                  Mr. Bigyan Kumar Sharma, Advocate


                                  -Versus-


    State of Odisha (Vigilance)           ....          Opposite Party
                 Mr. Niranjan Maharana, SC for Vigilance Department

             CORAM:
             JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT: 09.02.2023

1.

Instant petition under Section 482 Cr.P.C. is at the behest of the petitioner for quashing of the chargesheet dated 30th November, 2017 under Annexure-1 and the impugned order of cognizance dated 22nd December, 2018 vide Annexure-2 passed in connection with G.R. Case No.35 of 2009 by the learned Special Judge (Vigilance), Bhawanipatna on the grounds inter alia that the proceeding against him is not tenable in law and hence, deserves to be interfered with and quashed.

2. The petitioner's contention is that the order of cognizance under Annexure-2 is arbitrary, illegal and bad in law as the chargesheet under Annexure-1 does not reveal a prima facie case or any cognizable offence to have been committed by him. It is claimed that the learned court below grossly erred in taking cognizance of an offence under Section 3(1)(d) of Prevention of Corruption Act (in short 'the P.C. Act') as it was not an offence with effect from 26th July, 2018 and furthermore, there has been no violation of any of the regulations of OPWD code, inasmuch as, the rate of the items purchased was approved by a Committee consisting of senior officials of the State Government. There has been no illegality committed, as according to the petitioner, towards the purchase of

Rajendra Nath Nayak Vrs. State of Odisha (Vigilance)

Electro Chlorinators and no malafide or mens rea on the part of the petitioner can be attributed which is an essential ingredient and the same is found to be conspicuously absent. So to say, the petitioner has challenged the initiation of Vigilance proceeding in G.R. Case No.35 of 2009 with an additional ground that in a similar case (VGR No.29 of 2009), no chargesheet was filed.

3. Heard Mr. Sharma, learned counsel for the petitioner and Mr. Moharana, learned counsel for the Vigilance Department.

4. Mr. Sharma, learned counsel for the petitioner submits that tender notice was published and due process was followed and such notice was released not by the orders of the petitioner but after a decision of the concerned department, as according to the chargesheet, notice was forwarded to Information and Public Relations Department. It is further submitted that in view of the emergent situation, the petitioner decided to purchase Electro Chlorinators from the alleged firm at the approved rate so decided by a Committee of the department constituted at district level and it was a collective decision by which the rate was approved and thereafter order was placed with the concerned firm to supply the goods after having obtained the administrative approval and in that regard, there has been no violation of the provisions of the OPWD code. According to Mr. Sharma, the tender notice was published and again it was retendered in response to which only two bidders participated and M/s. Sushree Trading, Bhubaneswar was found to be L1 bidder but it did not have requisite experience as required in Detailed Tender Call Notice (DTCN), whereas, the 2nd bidder M/s. Shree Laxmi Marketing, Bhubaneswar was required to negotiate on the tender rate but the same did not materialize and in such a situation, there was no other alternative other than to accept the L1 bidder and since purified drinking water was badly required during hot summer and to avoid epidemic and as there

Rajendra Nath Nayak Vrs. State of Odisha (Vigilance)

was no scope for placing the tender again, negotiation was made with M/s. Sushree Trading Bhubaneswar and finally, the transaction was fructified for purchase of Electro Chlorinators at the negotiated and approved rate after the clarification that they have experienced crews to undertake and manage the job. According to Mr. Sharma, there has been no illegality in the said purchase and in a similar case, the Vigilance Department submitted the final report against the Executive Engineer RWS&S Division, Cuttack vis-à-vis installation of Electro Chlorinators during 2007-08, wherein, the allegation was that the purchase was made at a higher rate without tender and an excess amount of Rs.58,02,144/- was the loss to the Government exchequer. So, the contention is that the petitioner deserves no less than treatment than his counterpart in VGR No.29 of 2009.

5. Mr. Moharana, learned counsel for the Vigilance Department on the other hand submits that a lot of irregularities in the purchase of Electro Chlorinators were detected and therefore, the chargesheet was filed against the petitioner since he had shown undue official favour and facilitated pecuniary advantage to the agency for an amount of Rs.12,49,308/- and for the said purpose, sanction was obtained and thereafter, chargesheet was filed, whereas, in VGR No.29 of 2009, no such illegality could be established as the alleged purchase was with the administrative approval and technical sanction but in the present case, it was not obtained and hence, there can be no comparison. It is further submitted that the agency was selected despite having no experience and valid OST/GST registration and in so far as the payment is concerned, it was released prior to the completion of the tender process but before installation and without retaining any amount towards security, testing and successful commissioning as required under the OPWD code, whereas, in VGR No.29 of 2009, an amount of Rs.18,58,125/- was withheld out of the total amount. Hence, it is

Rajendra Nath Nayak Vrs. State of Odisha (Vigilance)

contended that number of irregularities and illegalities were noticed in the case of the petitioner leading to the filling of the chargesheet. Finally, it is submitted that though the offence under Section 13(1)(d) of the P.C. Act was repealed with effect from 26th July, 2018 but it is in connection with a case registered prior to the amendment and therefore, the order of cognizance under Annexure-2 cannot be challenged on such ground. While contending so, Mr. Moharana submitted that the P.C. (Amendment) Act, 2018 shall have no effect on pending enquiry, investigation or trial in respect of the offences committed prior to the said amendment.

6. A copy of the chargesheet is at Annexure-1. The details of the purchase carried out at the behest of the petitioner stands described in Annexure-1 and therein, it is alleged that the provisions of the OPWD code were violated. The flaws in inviting tender and the illegalities committed towards the purchase of Electro Chlorinators without the administrative approval and technical sanction in respect of some of the schemes have been narrated in the chargesheet in great detail with the total loss to the Government exchequer alleging gross abuse of official position by the petitioner and the others.

7. Mr. Moharana, learned counsel for the Vigilance Department referring to the decision of the Apex Court in Saranya Vrs. Bharathi and Another (Criminal Appeal No.873 of 2021 decided on 24th August, 2021) contends that the evidence on record is not required to be examined and cross-verified while exercising jurisdiction under Section 482 Cr.P.C. so as to reach at a conclusion whether the prosecution would result in conviction or not. One more decision in the case of State of Odisha Vrs. Pratima Mohanty and Another (Criminal Appeal No.1455-1456 of 2021 decided on 11th December, 2021) of the Apex Court is placed reliance on by Mr.

Rajendra Nath Nayak Vrs. State of Odisha (Vigilance)

Moharana while advancing an argument that inherent jurisdiction though very wide but should be exercised very cautiously and for the said purpose, the Court cannot go into the merits of the allegation or appreciate evidence in detail like holding a mini trial.

8. On a reading of the chargesheet under Annexure-1, it is made to suggest that the petitioner was the Executive Engineer, Kalahandi RWSS Division and on the instruction of the Chief Engineer, he had allowed the Junior Engineers of the concerned jurisdiction to submit estimates for procurement, installation and commissioning of Electro Chlorinators under their respective divisions and as per the OPWD code, it was his responsibility for due execution with a prepared plan and estimate for all the works to be executed in the divisions. As per the chargesheet allegations, administrative approval was obtained in respect of 23 new schemes whereas no such approval was available in respect of 2 old schemes viz. Icchapur and Parla and in so far as the experience needed for commissioning the work, it was mandatory which was not adhered to and while inviting tender notice, it was published in insignificant non-descript local dailies. Furthermore, the nature of illegalities for that matter stands described in Annexure-1 and also to show that the installation of Electro Chlorinators was not cost effective and there was differential amount calculated as the loss caused to the Government. Mr. Sharma, learned counsel for the petitioner sincerely attempted to pinpoint the discrepancies in the chargesheet so as to suggest that there was no illegality in the purchase of the Electro Chlorinators and the rate was approved by a Committee and therefore, loss to the Government could not have been alleged.

9. Whether the provisions of the OPWD code have been scrupulously followed or violated at or before the purchase and installation of the Electro Chlorinators is a matter to be gone

Rajendra Nath Nayak Vrs. State of Odisha (Vigilance)

through during trial. There is also allegation regarding absence of administrative approval which is contradicted by an affidavit dated 11th September, 2022 of the petitioner by referring to a letter of the RWS&S to the Vigilance Department dated 4th April, 2012 stating therein that for the left out two old schemes, it was accorded. Such a question needs confrontation with reference to the records. That apart, flaws have been noticed or detected while inviting tender. The experience certificate of the agency is said to have been dispensed with by accepting a clarification from the agency which is a requirement as per DTCN for the bid which one could reasonably question for having been exempted. A serious doubt has also been entertained as to the reason why the tender notice was published in non-descript and insignificant local dailies which escaped a wide circulation. The manner in which the tender was floated till the installation and release of payment to the agency has been questioned which is sought to be defended with the final report in VGR No.29 of 2019. A chart is furnished by Mr. Moharana, learned counsel for the Vigilance Department to differentiate the reason behind filing of the chargesheet against the petitioner in juxtaposition to a final report in VGR No.29 of 2019, wherein, not only administrative approval and technical sanction was obtained in respect of the entire project, no illegality was found in the purchase and installation of Electro Chlorinators and therein, some amount was also earmarked and withheld towards security, testing and successful commissioning as per the OPWD code and besides the above, the quality of goods brandwise and its function was found to be satisfactory but it was not up to the mark in the case of the petitioner and without examining all such aspects in detail, since the facts alleged by the Vigilance Department are to be scrutinized during trial, the Court is of the conclusion that the challenge to the filing of the chargesheet under Annexure-1 cannot be justified at this stage so also the order of cognizance vide

Rajendra Nath Nayak Vrs. State of Odisha (Vigilance)

Annexure-2. In other words, all the material facts regarding the allegation so put forth by the Vigilance Department needs a thorough and threadbare examination and scrutiny of the relevant evidence, it should therefore be left open for determination by the learned court below. As regards the offence Section 13(1)(d) of P.C. Act is concerned, though by the time the order of cognizance under Annexure-2 was passed, it was no more in the statute for having been repealed in 2018 but the petitioner was rightly chargesheeted for the said offence, as it was related to a cause of action much before the Amendment Act, 2018 came into force. Hence, therefore, such contention of Mr. Sharma, learned counsel for the petitioner must have to be rejected.

10. Without expressing anything on the merits of the case, the Court is of the considered view that all the questions are to be taken cognizance of and examined by the learned court below during trial as the charges levelled against the petitioner cannot be said to be entirely groundless nevertheless needs determination. A whole lot of scrutiny is necessary with reference to the materials on record, an exercise which cannot be undertaken by the Court as any such approach could possibly result in piece meal trial as has been reiterated in Pratima Mohanty (supra).

11. Accordingly, it is ordered.

12. In the result, the CRLMC stands dismissed.

(R.K. Pattanaik) Judge

U.K. Sahoo