Lal Jee vs State of U.P. and Others

Sunil Ambwani and K.N. Pandey, JJ.—The Petitioner is serving as Asstt. Engineer in Public Works Department of the State. At the relevant time he was posted as Asstt. Engineer, Public Works Department, Jhansi. By this writ petition he has prayed for setting aside the orders dated 14.11.2008 passed by the Secretary, Public Works Department, Anubhag-13, Government of U.P. Lucknow, (the Disciplinary Authority) punishing him, after a departmental enquiry, with a censure entry and withholding 4 yearly Increments temporarily for a period of 5 years.

We have heard Shri R.K.S. Chauhan, learned Counsel for the Petitioner. Learned standing counsel appears for the Respondents.

On a surprise inspection made by the Minister of Public Works Department, Government of U.P. of the Lumbini-Dudhi State High Way No. 5, in the presence of the Principal Secretary, Public Works Department: Chief Engineer, Level-1 (Works) ; chief Engineer Public Works Department, Gorakhpur and Superintendent Engineer, Public Works Department, Basti Circle and other officers, it was found that the construction of the road was left out and large quantity of loose stones of different sizes spread over the road from Km. 50 to Km.53 and Km.62 to Km.66. The reinforcement work of the road was incomplete and was not carried out in accordance with the time schedule, and standards to be maintained by the Public Works Department.

A charge-sheet dated 7th September, 2005 was served upon the Petitioner for delay in execution of the work of reinforcement of the road. The allegations in substance on the charges were: Charge No. 1: the work was to begin under contract from 3.3.2005 and was to be completed on 2.7.2005. whereas only 10-15% work was completed. Loose stones were found lying on the length of the road at Km.50 and 51 of different sizes ; many stones were found to be oversized for which no arrangement was made for rollers to level the road ; Charge No. 2: that at Km.53 the sample of field density of bitumen content on the road was sent to the laboratory in which it was found that 7 samples out of 8, taken from on Km.53, contained oversized stones. If the stones were to be broken on the road, as it was done, appropriate interlocking was not ensured, affecting the strength of the road. Charge No. 3: Though the work was incomplete, even after the expiry of the period of contract no action was taken against the contractors and Charge No. 5: The allegations were found to be sufficient to constitute misconduct under Rule 3 of the U.P. Government Servant Conduct Rules, 1956.

The Petitioner''s reply was based on the explanation given by the contractor, namely that on account of Maoist activity and declaration of emergency in Nepal, the regular supply of stones was interrupted, and that just before the inspection there were heavy rains in the area. The enquiry officer, considered the explanation given by the Petitioner, denying that 50% stones were oversized. It was stated by the Petitioner that several letters were written to the contractor to break oversized stones. The enquiry officer was of the opinion that it was not proved that the Petitioner and the Executive Engineer had given notices to the contractor to complete the work within time and that the supply of stones was affected due to no availability of the stones on account of strikes in Nepal and excessive rains. The explanation with regard to oversize stones and the breakage of stones on the road, without ensuring its size and uniformity was also not accepted. The enquiry officer found that the Public Works Department has expertise in constructing roads of several decades. The spreading of oversized stones on the road without breaking it in uniform size was necessary. The samples sent to the laboratory, were collected by the Regional Officers and was sealed in gunny bags. They were found to contain 60% oversized stones. The stones on Km. 53 were also found to be oversized.

The Petitioner was given copy of the enquiry report to submit his reply. The State Government considered his reply to the report of the enquiry officer and did not find it sufficient. The State Government was of the opinion that Lumbini Dudhi road is of international importance used by the tourists. The use of oversized stones and substandard material for construction on the road and even at the place P-l, where the work was complete, prove negligence of the Petitioner in discharge of his duties.

Learned Counsel for the Petitioner submits that the charges were baseless, hypothetical and imaginary. There was no charge in respect of P-l (Painting-1) and pre-coating against the Petitioner. The Junior Engineers suspended along with the Petitioner were reinstated and were not given any punishment. He would submit that the State Government has acted illegally and has discriminated the Petitioner, in awarding punishment.

The Petitioner has relied upon the orders passed in respect of Shri Ajay Kumar, Junior Engineer ; Shri Kamal Ahmad Ansari, Junior Engineer ; and Shri Deep Narain Srivastava, Junior Engineer, associated with the Petitioner in supervising the construction of the road. All these three Junior Engineers were exonerated from the similar charges levelled against them.

There is no complaint, nor any ground is taken in the writ petition, of non-observance of procedure in the departmental enquiry and violation of natural justice. The departmental enquiry was conducted in compliance with the procedure prescribed for major penalty under the U.P. Government Servants (Punishment and Appeal) Rules. 1999.

We have examined the Office Memorandum dated 23.5.2006 respectively annexed to the writ petition and find that all these three Junior Engineers were exonerated as the charges were not established against them.

We asked the Petitioner to file enquiry report in respect of three Junior Engineers. In the enquiry reports filed alongwith supplementary-affidavit of the Petitioner dated 22nd February, 2010, the enquiry officer was of the opinion that these three Junior Engineers were not given charge of the works by Shri R. K. Saxena, Junior Engineer upto 26.9.2005, whereas inspection was made on 3.8.2005. They had informed the Asstt. Engineer (III) and the Executive Engineer on 7.9.2005 about the delay in handing over charge by Shri Saxena. Shri Ajay Kumar, Junior Engineer was on the election duty from 5.8.2005 to 23.8.2005. The Junior Engineer, win was to hand over the charge was also on election duty from 30.7.2005 to 29.8.2005. In respect of Kamal Ahmad Ansari also the enquiry officer had found that Shri R.K. Saxena had not given him charge of the works. Shri Ansari was also on election duty from 30.7.2005 to 29.8.2005 and had informed the Asstt. Engineer and Executive Engineer on 7.9.2005 that he has not been given charge of work by Shri Saxena. In respect of Shri Deep Narain Srivastava a similar explanation was accepted that he was on election duty from 6.8.2005 to 29.8.2005 and that inspite of reminders dated 7.9.2005 Shri Saxena had not given charge of the work given to him.

We thus find that all the three Junior Engineers with whom the Petitioner is claiming parity and consequential discrimination in dropping the departmental enquiry, were exonerated on the ground that they were not given charge of the work, upto the date of inspection, and even thereafter and that during relevant time they were on election duty.

The opinion of the enquiry officer accepted by the disciplinary authority is based upon the inspections made by the Minister of Public Works Department in the presence of the Principal Secretary, Chief Engineers and Superintending Engineers. They had found oversize stones on the road, the road had to be completed and that portion on which the work was complete, was found to contain oversize stone, which were broken up on road itself.

The Public Works Department is an expert organisation engaged in carrying out the work of constructing road in the State for several decades. The Senior Engineers of the Department have the expertise and knowledge of the standard of material used and the methods of construction of roads. The State Government has found that the Petitioner was negligent in supervising the constructions. The Court does not ordinarily review such opinions.

We do not find any good ground to interfere in the findings recorded by the Principal Secretary of the Department based upon the material found at the time of inspection and the report of the laboratory on the samples taken to examine the quality of the constructions. There was no discrimination in awarding punishment to the Petitioner.

The writ petition is dismissed.