Shiv Kumar Gatole vs State of M.P. & others

The petitioner before this Court, who was working on the post of Assistant Project Engineer, PWD, PIU, Dindori, is aggrieved by the order dated 3.3.2016 (Annexure P-1) passed by the Additional Secretary, PWD, Bhopal, whereby after departmental enquiry the petitioner was found guilty and has been imposed a major penalty of dismissal from service.

In brief the facts of the case are that the petitioner was initially appointed on daily wages in the respondents'' department as Civil Engineer in the year 1994 and was regularized on 7.10.2009. On 26.8.2013 he was slapped with a charge sheet in which the following allegations were made:

"An administrative sanction of Rs.1051.51 lakhs was given by the government on 6.10.2005 for a work on 49.60 KM of Shahpura Bathounda, Vikrampur, Dohaniya Road. The Chief Engineer, PWD Central Zone Jabalpur gave a technical sanction dt.18.11.2005 of Rs.941.56 lakhs. Accordingly, tenders of this very amount were invited and ultimately granted to M/s Phantom Infrasturcture and Real State Pvt. Rewa on 8.11.2006. But as per 50th running bill the petitioner recommended a total of Rs.1411.68 lacs for payment which is 34.24% (actually it comes to 25.51%) more than the administrative sanction whereas before spending more than 10% than the administrative sanction, the sanction of competent authority of the revised amount had to be taken. But without doing this, the petitioner recommended the payment of the said amount. Secondly, the construction work is also incomplete. Against a sanction of 49.6 km., work of 32 km is only complete. In the inspection dated 17.12.2012 by the SE Jabalpur most of the portion was damaged. Thirdly, 46 numbers drum delineators worth Rs.14.628 lacs and milestones/km. pointer stones worth Rs.1.505 lacs were sanctioned but this work was not done. Fourthly, there was no escalation clause. But the petitioner recommended the payment of Rs.362.17 lacs against escalation. Further an amount of Rs.110.53 lacs was paid on the basis of the recommendation given by the petitioner which was more than 25% then the administrative sanction".

To this charge sheet, the petitioner also submitted his reply on 3.10.2013 contending that he is only a Sub Engineer having no power to sanction any payment. His duty is only to measure the work actually done on the field and also to check the material and supervise the quality of work. It was further submitted by the petitioner that he had no role to play in sanctioning any amount and infact it was the Executive Engineer, who ordered the petitioner to present the bill against escalation and increased work and he only complied with the order of his superior officers. The petitioner has also filed some documents to show that the actual work was done and has also filed the note sheet which bears the signatures of the Auditor, SDO J.K.Jain and the Executive Engineer PD Verma. The petitioner has based his entire defence on the ground that he is not responsible if any loss has been caused to the department or any work could not be completed upto the mark and given his hierarchy status. Therefore, no such allegation can be levelled. It is further contended by the petitioner that the four persons were examined in his absence despite the fact that he was standing outside the chamber of Shri Agrawal. After examination of four persons, the petitioner was called in the chamber and was shown statements of four witnesses on the computer screen and was asked to cross examine them, and as such the petitioner was under pressure while asking the questions from the witnesses. Even the copies of the statements of the witnesses were not supplied to the petitioner despite many applications in this behalf. It is further submitted that the statements reproduced in the enquiry report showed that all the witnesses denied knowledge of the allegations against the petitioner. Therefore, it is prayed that even considering the material available on record against him, his dismissal from service was totally uncalled for.

On the other hand, learned counsel for the respondents has taken a preliminary objection regarding the maintainability of the writ petition on the ground that the impugned order has been passed by the competent authority under Rule 10 of the Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as the "CCA Rules, 1966"), hence a remedy of statutory appeal is available to the petitioner and without first taking recourse of the same, the petitioner has directly approached this Court and as such the petition is liable to be dismissed on that ground only. The learned counsel for the respondents has also supported the impugned order inter-alia on the ground that the petitioner himself is responsible for his own acts.

Heard the learned counsel for the parties and perused the record.

A perusal of the writ petition reveals that in para 3 of the writ petition which refers to "Details of remedy exhausted", the petitioner, has stated that he has availed all statutory and other remedy but when faced with a preliminary objection regarding the availability of alternative remedy, in rejoinder the petitioner has tried to justify his filing of the writ petition on the ground that the appeal is maintainable before the Governor only but it is always decided by the Cabinet Minister and its summary is prepared by the Secretary of the department. It is further contended that where malice is alleged, such an appeal is not an effective alternative remedy, reliance is also placed on the decision of the Court in the case of Dr. Ramnaresh Vs. State of M.P. (2012) 4 MPLJ 533.

In the considered opinion of this Court, the petitioner has not been able to make out any case for invoking extraordinary jurisdiction of this Court. As is noted above, initially the petitioner had come up with a case that he has already exhausted all the statutory remedies but after a preliminary objection raised by the respondents, the petitioner has tried to justify the filing of the writ petition. The judgment in the case of Dr. Ramnaresh (supra) as relied upon by the petitioner is also of no help to the petitioner as in the case of Dr. Ramnaresh (supra) the order was passed by the Minister himself which prompted this Court to observe that an appeal which is filed before the Governor of the State is always placed before the Cabinet of Ministers, but it is not the situation in the present case. Even otherwise, the malafide as alleged by the petitioner does not appear to be genuine for the reason that even according to the petitioner those witnesses who have been examined in his absence have not deposed anything prejudicial to the interest of the petitioner.

In the result, the petition fails and is hereby dismissed accordingly on account of availability of alternative efficacious remedy of appeal. However, if the petitioner prefers an appeal under CCA Rules, 1966 within a period of two weeks'' from today, the same shall be decided by the appellate authority within a further period of three months without being influenced by the order passed by this Court. No cost.