Khumukcham Sylvester vs State Of Manipur And Others

Kh. Nobin Singh, J

[1] Heard Shri RK. Deepak, learned Advocate appearing for the petitioner and Shri H. Debendra, learned Government Advocate for the respondents.

[2] By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari to quash and set aside the order dated 17-03-2018 issued by the Managing Director, Manipur State Power Distribution Corporation Ltd. (hereinafter referred to as "the MSPDCL") and also to issue a writ of mandamus to direct the respondents to clear the outstanding bill to the tune of Rs.14,23,499/-.

[3.1] Facts and circumstances as narrated in the writ petition, are that the petitioner's diesel jeep bearing MNS 6938 was hired by the Power Department, Government of Manipur for its official use at the approved rate of Rs.430/- per day initially for a period of six months starting from 01.01.2003 and the period of hiring was subsequently extended several times on the same terms and conditions till when it came to an end on 31.12.2013. The terms and conditions of the hiring include the following:

(i) The salary expenses of the jeep driver will be borne by the owner of the vehicle.

(ii) Vehicle maintenance expenses including the cost of lubricant oil, cost of repairing on wear and tear and vehicle taxes will be borne by the owner of the vehicle, and

(iii) Expenses for HSD oil will be borne by the Power Department.

[3.2] The Power Department had been utilizing the petitioner's vehicle continuously from 01.01.2003 to 30.09.2013, without any break, during which the petitioner never committed any breach of the contract warranting non-payment of the above hiring charges. The Power Department was bifurcated into two units and the payment of liabilities was being handled by one of the units known as the MSPDCL.

[3.3] As per the approved rate of hiring charge of the vehicle for the period from 01.01.2003 to 30.09.2013, the outstanding amount came to be Rs.16,73,499/- (Rupees sixteen lakh seventy three thousand four hundred and ninety nine) against which the Power Department had paid a sum of Rs.2,50,000/-(Rupees two lakh and fifty thousand) only in two installments-one, Rs.1,00,000/- (Rupees one lakh) in the month of April 2006 and two, Rs.1,50,000/- (Rupees one lakh and fifty thousand) in the month of April 2009, leaving a balance of unpaid amount of Rs.14,23,499/- (Rupees fourteen lakh twenty three thousand four hundred and ninety nine). As per the terms of the contract, the petitioner had to bear the expenses towards vehicle taxes, salaries of the jeep driver and vehicle maintenance expenses such as lubricant oil, repairing of wear and tear on the vehicle. Since the petitioner was to pay monthly salary to the jeep driver regularly apart from the other expenses mentioned hereinabove, a meager sum of Rs.2,50,000/- (Rupees two lakh and fifty thousand) paid so far by the Power Department could not even cover the expenses towards the salaries of the jeep driver. In spite of the above inconveniences, the petitioner continued lending his vehicle to the Power Department till 30.9.2013 in the interest of public. However, due to the non-payment of the outstanding bill to the tune of Rs.14,23,499/-, it became impossible for the petitioner to continue payment of salaries to the driver and to bear the expenses for maintenance of the vehicle. Accordingly, the petitioner discontinued lending his vehicle further since 30.09.2013.

[3.4] Being aggrieved by the non-payment of the outstanding bill, the petitioner approached the concerned authorities repeatedly by submitting several representations dated 20.04.2011, 14.11.2011, 07.03.2014 and 15.05.2014 for clearing the long outstanding bill but to no avail. The Power Department did not event respond to the said representations nor was the remaining unpaid bill cleared by them till then. Being aggrieved by the inaction on the part of the respondents, on 26.08.2014 the petitioner filed a writ petition being WP(C) No.637 of 2014 praying for issuing a writ of mandamus or any other appropriate writ to direct the respondents to take necessary steps to clear the said long outstanding bill along with interest at an early date, which was disposed of 14.11.2016 directing the petitioner to submit a representation to the Managing Director, MSPDCL within one week and the Power Department to take a decision, thereafter, within six weeks therefrom, the relevant portion of which reads as under:

Accordingly Petitioner is directed to submit a representation to this effect before the Managing Director, Manipur State Power Distribution Company Ltd. Within a period of one week raising claims as has been raised in this application shall be taking decision over it in accordance with law within a period of six weeks and the decision taken in this regard shall be communicated to the petitioner immediately thereafter.[Emphasis added]

[3.5] Pursuant to and in compliance with the direction of this Court, the petitioner submitted a representation dated 31.03.2017 requesting the respondents to make necessary steps to clear the above-mentioned outstanding bills to the tune of Rs.14,23,499/-, along with a reasonable interest, to meet the ends of justice. The MSPDCL did not respond to the said representation also even after the expiry of time specified by this Court which compelled the petitioner to file a Contempt Petition, being CC(C) No.159 of 2017 on 29.08.2017 under Section 12 of the Contempt of Court Act, 1971 read with Article 215 of the Constitution of India for initiating contempt proceedings against the respondents. During the pendency of the contempt petition, the i/c Managing Director, MSPDCL issued the order dated 17.03.2018, impugned herein, thereby rejecting the claim of the petitioner for payment of the long outstanding bills payable to him. However, in the view of the order dated 17-03-2018, the contempt case was closed.

[3.6] Being aggrieved by the said order dated 17-03-2018, the instant writ petition has been filed by the petitioner on the inter-alia grounds that the petitioner's jeep was used by the Power Department continuously for 11 years which is undisputed; that out of the total amount of Rs.16,73,499/-, a sum of Rs.2,50,000/- was paid in two installments and that the guidelines as laid down in Pathak's case were not applicable to the facts of the present case.

[4] An affidavit-in-opposition has been by the respondent No.2 wherein it has been stated that the work orders dated 23/03/2009 and 17/02/2009 for hiring the petitioner's jeep were approved by the Chief Engineer and the remaining works were awarded without its approval. Since the work orders were issued without following due procedure of law, they were null and void. After unbundling the then EDM into two entities viz. MSPCL and MSPDCL, the Government issued an order dated 7th August 2014 stating that "all such claims for payment of old pending liability of the erstwhile divisions of Electricity Department may be properly examined in the Company either MSPCL/MSPDCL and payments of all the genuine cases may be taken up by the Company". Assuming but not admitting that a sum of Rs.2,50,000/- was received by the petitioner, it did not mean that all the contract works were executed by him. A Committee was constituted vide order dated 26/12/2016 to examine the genuineness of the claims made by the petitioner and on the basis of the recommendation of the Committee as contained in the report/finding, a speaking order was issued by Managing Director, MSPDCL on 17th March, 2018 by rejecting the claim of the petitioner as Non-Admitted Outstanding liabilities/ unauthorized Contract Works/ Supply, as there were no supporting documents i.e. approval & expenditure copies, budgetary provision, duly verified Bills, M.B. etc. in respect of 14 number of work orders dated 29/03/2003, 24-12-2003, 27-02-2004, 29-10-2004, 2-07-2005, 02-07-2005, 27-03-2017, 29-03-2017, 27-04-2007, 27-07-2007, 27-10-2007, 13-03-2008, 04-07-2008 and 18-12-2012 for hiring the vehicle. The work orders dated 23/3/2009 and dated 17/2/2009 were approved by the Chief Engineer, while the work orders dated 03-12-2009 & dated 30/03/2010 were approved by the Additional Chief Engineer and the remaining works for hiring the jeep were approved by the Superintending Engineer. The above works were awarded without the approval of the competent authority, ie., the Chief Engineer except the work orders dated 23/03/2009 and dated 17/02/2009. All the bills with respect to the above work orders, were not passed by the concerned Executive Engineer except the work orders dated 23/3/2009 and dated 17/2/2009. In order to prove that the above works have been executed, the bills should be duly passed/ verified and countersigned by the concerned Executive Engineer. Expenditure sanctions were not accorded for the above said works and the liability claims without expenditure sanction were invalid.

[5] On perusal of the materials on records, it is seen that the petitioner's jeep was hired on the strength of the various letters, filed herewith as Annexure-A/1(colly), written by the Executive Engineers who were in-charge of the Electrical Division-III with copy endorsed to the Chief Engineer. They were expected to know their duties and functions and were to follow the relevant rules in the discharge of their duties. It is not in dispute that the petitioner's jeep was hired by the Power Department through their Executive Engineers and all that the respondents and in particular, the respondent No.2 have stated, is that the works orders were issued without the prior permission of the authority concerned. The aforesaid letters were written by them and therefore, it is they who can be said to have violated the rules. There is no material on record to show that it is the petitioner who is responsible for the irregularity or illegality committed by the Executive Engineers. There is no allegation of collusion with the Executive Engineers which can be attributed to the petitioner.

[6] From the materials on record, it may be noted that the fact that a total sum of Rs.2,50,000/- was paid to the petitioner in the year, 2006 & 2009, has shown that the authority concerned was aware of the petitioner's jeep being hired by the Executive Engineers. In the affidavit filed by the respondent No.2, it has been admitted that the approval was granted in respect of two work orders dated 17-02-2009 and 23-03-2009 and if that be so, the respondents cannot be permitted to take the plea that no approval was granted in respect of the remaining work orders. It is hard to believe that the Chief Engineer to whom the copies of the said letters were endorsed, did not know anything about the transaction. It could have warned the Executive Engineers from acting in that manner when the copies of the said letters were received by it. But the Chief Engineer failed to do that and cannot now take the advantage of its own mistake. The respondents appear to have not taken any action against the Executive Engineers who are responsible for such irregular or illegal contracts as alleged and reflected in their various letters prescribing the terms and conditions. The State Government being an institution ought to act fairly and reasonably. The manner in which the State Government had taken undue advantage of the service rendered by the petitioner, an innocent citizen, by abusing and misusing their official power, is unreasonable being violative of the provisions of Article 14 of the Constitution of India. Keeping in mind the peculiar facts and circumstances of the present case, this Court is of the view that the petitioner cannot be penalized for no fault of his and therefore, the respondents are liable to pay the amount outstanding payable, to the petitioner and after the outstanding bill being cleared by the respondents, it is open to them to take appropriate action against the Executive Engineers to recover the said amount.

[7] In view of the above and for the reasons stated herein above, the instant writ petition is allowed and consequently, the impugned order dated 17-03-2018 is quashed and set aside with the direction that the outstanding amount of Rs.14,23,499/- due payable to the petitioner, shall be paid to him within three months from today and in the event of the respondents having failed to pay the said amount within the said time, the said sum of Rs. 14,23,499/- will accrue interest @ 8% per annum. The principal amount with interest thereon shall be paid to the petitioner within three months thereafter from the date of expiry of the earlier three months as directed by this Court. There shall be no order as to costs.