Mangal Singh Kerai and Others vs The State of Jharkhand and Others

Ajit Kumar Sinha, J.—The present writ petition has been preferred for the following reliefs:

(a) For quashing the orders contained in memo No. 74 A dated 20.12.2003 issued under the signature of the respondent No. 5 by which in a most illegal and arbitrary manner, in a most mechanical way and in utter violation of principles of natural justice i.e. without issuing any show cause notice or without making any proper enquiry, the respondent No. 5 has directed the petitioner to deposit the amounts mentioned in the said orders by merely making a reference of one order of the Deputy Commissioner dated 9.6.2002 of the respondent No. 6 alleging the wrong payment of the amounts in question in the work of tube well repairs in the Block.

(b) For directing the respondent No. 2 to either himself enquire into the entire matter or to appoint a rational authority/committee to examine and enquire into the entire subject matter considering the facts that the entire works in question have been done by and at the instance of the orders issued by the respondent Nos. 3 to 5 and through the agency appointed by the respondent No. 5 himself.

(c) For appropriate directions upon the respondents particularly the respondent Nos. 2 to 6, so that before taking coercive actions against the petitioner they should at least properly and rationally enquire/verify into the subject matter after giving proper opportunity of hearing to the petitioner and the other concerned persons connected with the work in question.

Since all the connected writ petitions involve the same issue and the questions of law, the same are being disposed of by this common order.

The facts, in brief are set out as under:

The petitioner was posted as Panchayat Sewak during the period 1999-2001 at Sonua Block in the district of West Singhbhum. A district level development committee meeting was held on 8.5.1999 headed by the Deputy Development Commissioner, Singhbhum West, Chaibasa which was participated by all the Block Development Officers of the district and a decision was taken by the committee to repair the tube wells and for drilling new tube wells, if necessary, and accordingly B.D.Os. were directed to execute the work through J.R.Y. panchayat funds. Pursuant thereto a direction was issued by respondent No. 4 as well as respondent No. 3 on 18.4.2000 to the concerned B.D.Os. including respondent No. 5 to immediately execute/undertake the job of repair of defective tube wells in their respective blocks under the Jawahar Gram Samridhi Yojna. The respondent No. 4 accordingly issued direction vide his wireless message dated 20.5.2000 in which it was instructed that the ordinary repair should cost at the maximum of Rs. 700-800/- and further in case of misuse of fund the concerned authorities will be made responsible. It also said that the local people should be informed and in their presence repair of tube well should be done and waste parts should be deposited.

Accordingly respondent No. 5 took steps for implementation of the said direction and invited bids for selection of working agency/supplier for execution of the work and finally the committee awarded the work to one Hridaya Construction, Chaibasa to execute the work of repair of old tube wells and work order was issued on 9.8.2000 to all concerned Panchayat Supervisor and Panchayat Sevak. It also specified about maintaining the quality of work and the standards to be maintained as per P.H.E.D. department at the lowest market rate. Accordingly work was done as directed by respondent No. 3, 4 & 5 by the agency appointed by respondent No. 5 in presence of the petitioners. The work in question was executed during the period 2000-01 and there was no complaint at that point of time. Suddenly after a lapse of two years the impugned order dated 20.12.2003 was issued against the petitioners vide which it was directed to recover an amount of Rs. 1,66,000/- for spending money beyond the fixed amount and it also directed to lodge F.I.R. against them.

The details of work at paragraph 13 executed in different panchayat which is quoted as under:

Name of Name of Name of Name of Amount of Panchayat Incharge Panchayat Working work Supervisor Sewak Agency Durajate Somra Lohra Petitioner Hridaya Rs.1,66,000/- Construction

The main contention raised by the petitioner is that the impugned order dated 20.12.2003 is punitive in nature and involves civil consequences and thus the cardinal principles of natural justice ought to have been complied with. The learned Counsel for the petitioner Mr. Ajit Kumar also states that at least a show cause should have been given to explain as to how they are not responsible for the loss and for any such allegation and thus the entire action is illegal and violative of Article 14 of Constitution and the well settled principles of natural justice.

The second contention raised by the learned Counsel for the petitioner is that as per the work order dated 9.8.2000 it was specifically mentioned that the Incharge Supervisor and Panchayat Sevak were to identify the useless tube wells which required to be repaired and it was for the contractor M/s Hridaya Construction to execute the work and thus the order of recovery after nearly three years from the petitioners was on the face of it illegal, arbitrary and without jurisdiction. It is also submitted that respondent No. 5 B.D.O. who has passed the order of recovery is himself guilty and specific allegations have been made against him and strangely he has lodged the F.I.R. and to support this contention the learned Counsel refers to and relies upon para 10, 13 & 28 of the counter affidavit filed on behalf of respondent No. 1 to 6 which is quoted as under:

That it is submitted that these hand pumps were installed by the PHED, the ownership vested with them. This department prime job is to repair the hand pump. At block level J.E. & Mistries etc. of PHED work under control of the B.D.Os. But even their technical expert''s services were never called for. This is against the guidelines of JGSY 21.6 & 21.10.

That it is submitted that a countractor Hridaya Construction was engaged by the B.D.O. by inviting table tender and giving work of Rs. 25 lacs. The B.D.Os. are not competent for doing so. This is also violative of the guidelines of JGSY 25 & 25.1, which prohibits use of the contractor.

That with regard to the statement made in para 2e of the writ petition under reply, it is submitted that the petitioner as Panchayat Sewak, is Secretary to the Panchayat and it is his responsibility to follow rules of JGSY, a centrally sponsored scheme. Respondent No. 3 to 5 never given any direction that the JGSY guidelines should be violated, even respondent No. 4 vide his letter No. 428 dated 18.4.2000 asked for survey, which had not been done. Respondent No. 5 the then B.D.O. Shri Abhishek Srivastava has also committed mistake by appointing a contractor to do the work by inviting table tender which was against the guidelines of JGSY point No. 25. It is clear that the petitioner and then B.D.O. had connived to misuse the public fund.

It has also been submitted that there is a case of total non-application of mind and passing burden/liability on the innocent petitioner and even the order of recovery passed by respondent No. 5, B.D.O. demanding the total alleged amount of Rs. 1,66,000/- from each of the petitioners shows and proves that the recovery order was totally without application of mind, illegal and without any basis.

The counsel for the respondent State submits that the department has suffered a loss of Rs. 1,66,000/- and the petitioners were rightly held to be responsible since they were made incharge of it at the block level and the B.D.O., respondent No. 5 rightly issued the order of recovery.

I have considered the rival submissions. The first and foremost fact remains that the order is punitive in nature and involves recovery of an amount of Rs. 1,66,000/- issued by the B.D.O. against petitioners without even asking them for a show cause to explain nor any enquiry was held which goes to the root of the matter and the action is against the well settled cardinal principle of natural justice. It will be evident that it is the Block Development Officer who had issued the impugned letter dated 20.12.2003 and has also lodged the F.I.R. but on bare reading of the counter affidavit it will be evident by reading paragraphs 13, 13 & 28, as quoted hereinabove, that the total mistake and responsibility was attributed to him. As per the work order the only assignment given to the petitioners was to identify the defective tube wells for its repair and the actual work was to be executed by the Contractor on the direction of the B.D.O., but neither the contractor nor the B.D.O. have been held responsible for drawing money beyond the sanctioned amount with which the petitioners have no concern nor they were authorized. The impugned order also reflects the total non-application of the mind for the sole reason that each of the petitioners have been held liable for the recovery of Rs. 1,66,000/- whereas the total loss even according to them was Rs. 1,66,000/-. The agency and the contractor to execute the work was appointed by respondent No. 3 to 5 and the petitioners had no role in it and it is strange that no responsibility has been fixed on the concerned contractor and the B.D.O. who are the chief pivot under whose instances the work was directed to be executed and the petitioners had a very limited role of only identifying the defective tube well for repair.

Considering the aforesaid facts and circumstances of the case, the entire action is on the fact of it arbitrary, illegal and violative of Article 14 of the Constitution of India and there is a total non-application of mind and accordingly the impugned order dated 20.12.2003 is quashed.

These writ petitions are accordingly allowed with no order as to costs.