Partly allowed

Humayoon S. v. Deputy Secretary

Kerala HC11 Nov 2015WP(C)/18836/2004

Case brief

AI extract

What is this about?

The High Court modified the punishment imposed on a government officer for withholding three increments, converting the penalty to a non-cumulative basis. The court held that while a shortage of metal existed, the original assessment failed to account for documented losses due to compaction, traffic, and weather, making the cumulative penalty disproportionate to the established gravity of the offe

What did the court decide?

The punishment was modified from withholding three increments with cumulative effect to withholding three increments without cumulative effect.

Humayoon S. Vs Deputy Secretary — Pension and Retirement Benefits | Kerala HC (2015)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:-

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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WEDNESDAY, THE 11TH DAY OF NOVEMBER 2015/20TH KARTHIKA, 1937

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W.P.(C).No.18836 of 2004 (P)

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PETITIONER(S):-

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HUMAYOON. S., S/O. B. SULAIMAN RAWTHER, AGED 46 YEARS, RESIDING AT HUMAYOON MANZIL, VALLANA, ERUMAKKAD P.O., PATHANAMTHITTA DISTRICT. [ASSISTANT ENGINEER, P.W.D. LOCAL BODY SECTION, PATHANAMTHITTA].

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BY ADVS.SRI.GEORGE THOMAS (MEVADA) [SENIOR ADVOCATE] SRI.SUNNY MATHEW.

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RESPONDENT(S):-

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THE DEPUTY SECRETARY, VIGILANCE (E) DEPARATMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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THE JOINT SECRETARY TO GOVERNMENT, VIGILANCE (E) DEPARTMENT, THIRUVANANTHAPURAM.

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THE PRINCIPAL SECRETARY TO GOVERNMENT, VIGILANCE (E) DEPARTMENT, THIRUVANANTHAPURAM.

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THE ASSISTANT EXECUTIVE ENGINEER, DISTRICT PANCHAYAT SUB DIVISION, ALAPPUZHA.

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STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM.

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R1 TO R5 BY GOVERNMENT PLEADER SRI.S.JAMAL.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

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W.P.(C).NO.18836 OF 2004-P

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1	TRUE COPY OF THE FINAL REPORT IN ENQUIRY CASE NO.6/97.
EXT.P2	TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIOENR DT.28.1.1999.
EXT.P3	TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 10.05.1999.
EXT.P4	TRUE COPY OF THE ORDER NO.G.O.(RT).94/2000/VIG. DATED THIRUVANANTHAPURAM 4.5.2000 PASSED BY THE 1ST RESPONDENT.
EXT.P5	TRUE COPY OF THE REVIEW PETITION DATED 05.06.2000 SUBMITTED BY THE PETITIOENR BEFORE THE PRINCIPAL SECRETARY TO GOVERNMENT.
EXT.P6	TRUE COPY OF THE ORDER DATED 07.04.2004 PASSED BY THE 2ND RESPONDENT.
EXT.P7	TRUE PHOTOCOPY OF THE EXTRACT OF THE REPORT OF THE ASST. EXE. ENGINEER DATED 5.8.97.
EXT.P8	TRUE PHOTOCOPY OF THE DEPOSITION OF PW-3 IN ENQUIRY NO.6/97.
EXT.P9	TRUE PHOTOCOPY OF THE DEPOSITION OF PW-5 IN ENQUIRY NO.6/97.
EXT.P10	TRUE PHOTOCOPY OF THE DEPOSITION OF PW-6 IN ENQUIRY NO.6/97.
EXT.P11	TRUE PHOTOCOPY OF THE DEPOSITION OF DW-1 IN ENQUIRY NO.6/97.

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RESPONDENT'S EXHIBITS:-

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--------------------------------------NIL.

vku/-

[ true copy ]

K. Vinod Chandran, J

-------------------------------------W.P.(C).No.18836 of 2004-P

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Dated this the 11^th day of November, 2015

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JUDGMENT

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One, out of the three accused officers, (AO2) is before

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this Court challenging the findings of the Vigilance Tribunal and the recommendations made therein; following which Exhibit P4 order has been issued imposing the punishment of withholding of three increments. Exhibit P4 order, following the recommendations of the

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Tribunal, and Exhibit P6, rejection of the review petition, are essentially impugned herein.

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The petitioner, an Assistant Engineer (AO2), an Overseer Grade II (AO1) and an Assistant Executive Engineer (AO3) were arraigned as accused before the Tribunal, on allegations of having connived with the contractor, resulting in shortage of metal used in the laying of a road. The specific work contracted out by the Public Works Department [for brevity “PWD”], Local Body Section was the metalling work of 'Choorakkattu Mannil

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pady - Chakkunkalpady road' in Kozhanchery public road, coming under the Roads Sub Division, Pathanamthitta.

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WP(C).No.18836 of 2004

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The work is said to have commenced in the year 1993 and concluded in the year 1994. The investigation was initiated on the basis of an anonymous complaint received by the Director of Vigilance, which was forwarded to the Deputy Superintendent of Police, Vigilance Unit, Pathanamthitta. A surprise check was conducted by the said officer along with the

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Assistant Executive Engineer, Roads Sub Division, PWD, Pathanamthitta on 08.07.1994. On the basis of the report of the Assistant Executive Engineer, placed at Exhibit P7, charges were levelled against the accused officers.

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The gist of the charges was that the accused officers, in connivance with each other, allowed the contractor to execute the work deviating from the specification provided in the estimate and the agreements executed by the contractor, thus facilitating him to obtain undue pecuniary advantage of Rs.98,135.32. There is no dispute that the accused officers were in charge of the supervision of the work.

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As per the specification in the estimate, as revealed from the Enquiry Report at Exhibit P1, the sub-base metalling was to be done by spreading broken stones of 60 mm and 36 mm

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sizes in the ratio of 7 : 3, to 100 mm thickness and compacted to 75 mm using road roller. The base metalling specification was for spread of broken stones of 36 mm sizes, upto a thickness of 100 mm, again compacted to 75 mm again using road roller. It is also seen that after the award of the contract, on the request of the Panchayat, the metalling and tarring work of the road was extended by 150 meters. The metalling of the original award was completed during the month of June,1993 and the metalling of the extended length was completed during the month of February, 1994.

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The metal was supplied by the contractor at site, which was measured by the Assistant Engineer and check measured by the Assistant Executive Engineer, respectively AO2 and AO3. The sub-base metalling was also measured by the said officers on 03.06.1993 after the completion of work. Base metalling was measured by the Assistant Engineer on 18.06.1993 after completion of that work also. The metal for the additional work was also measured as indicated above on 22.06.1993 and check measured on 24.12.1993 and after completion of the work, measured by the Assistant Engineer on 28.01.1994 and

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25.02.1994 and check measured by the Assistant Executive Engineer on 3.2.1994 and 25.2.1994. Two bills were passed by the respective officers and paid to the contractor. However, by the time the third final bill was prepared, on the basis of the Vigilance enquiry the payment was withheld.

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The measurements made by the Assistant Executive Engineer, who inspected the site along with the Dy.S.P., Vigilance, was the basis of the charges and the clinching evidence before the Tribunal. Exhibit P7 indicates that the sample was collected from three different points in the road in which the metalling work was done. The 60mm and 36 mm metal collected from 1 square meter area in each point was handpicked and packed in a box. As per the inventory, the average quantity of metal was calculated and the resultant use of metal per 1 sq.m. Was found to 0.08 cubic meter. The total length of the road measured in the M.Book was 1602.5 meters and the area of metalling, including the bell-mouth, was found to be 4793.95 sq.m. The quantity, as per the estimate, to be used in 1 sq.m. Area was found to be 0.15 cubic meter. Hence, there was a shortage detected of 335.58 cubic meter, which was slightly lesser than one-half of the estimate.

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Deductions were made only for the tax component.

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A net loss of Rs.98135.32 was the figure arrived at, at Exhibit P7.

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The first contention raised by the petitioner is that the sampling was not in accordance with the norms prescribed. The accused persons themselves had relied on the specification for sampling in the “Engineers' Handbook”, which was extracted by the Tribunal as follows:

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“loss of metals - the thickness of the WBM layer should be checked at 15m intervals to assess the loss of metal. The measurement should be done at least at 3 places across the road”.

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Exhibit P7 report indicates that the manner of sampling was done in accordance with the same. Hence, there can be no dispute raised on the basis of the sampling done.

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The further contention raised is that, in compacting metal, there would be crushing of stones; especially when the stones spread at a thickness of 100 mm, is compacted to 75 mm using road roller. Such compacting has to be done at the sub base metalling stage and also at the base metalling stage. The compaction itself is by reason of the crushing of the stones and it

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WP(C).No.18836 of 2004 - 6 -

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is quite improbable that the quantity is the correct estimate of the metal used.

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At the sub-base metalling stage and base metalling stage, stones having size of 36 mm and 60 mm are used, which get crushed on being compacted by the road roller. Loss occurred on compacting, by reason of crushing of metal into pieces by the power roller which crushed the metal into chips, definitely had to be taken into account for measurement purposes in the samples collected. The said argument is very valid. Exhibit P7 has noticed the said aspect but has not provided for deduction on such crushing of metal into pieces. The question would be as to whether the deduction made is sufficient.

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Though the probable deductions and mitigating factors have been noticed in Exhibit P7, in computing the shortage the report has not taken into account the crushing of metals. Exhibit P7 specifically indicates that the sample contained crushed chips; but the quantity assessed was of the stones having size of 36 mm and 60 mm. It is also to be noticed that on compaction as provided in the estimate, 1/4^th of the thickness is reduced at each stage of sub base metalling and base metalling.

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WP(C).No.18836 of 2004

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One other aspect which assumes relevance is the time gap between the metalling work and the tarring work. In this context, a portion of the report at Exhibit P7 is extracted hereunder:

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“On perusal of M.Book it is seen that the black topping work is done during 6/94 i.e., after one year of the completion of the metalling work. This will lead to scattering and loss of Metal due to heavy traffic in the road, since the road is not closed for traffic. Hence the method for assessing the loss in a metalling work done after one year period is not fully correct. This can also be looked into”.

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Hence, it is very clear that the tarring was done after about an year of the base metalling work. The road was also kept open to the public and transport before tarring was done. Added to this, is the heavy rains to which the half-constructed road was exposed to. This aspect has also to be taken into account while deciding on the shortage.

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As was noticed by the Tribunal, the total shortage as reported in Exhibit P7 was substantial. When as per the estimate what was intended was the use of 1.5 cubic meter of metal in 1 sq.m. area, what was used, as detected from the

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WP(C).No.18836 of 2004 - 8 -

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sampling was 0.8 cubic meter. The total quantity of metal to be spread in the total area of 4793.95 sq.m. was 719.09 cubic meter, while the actual quantity used detected on sampling was 383.52 cubic meter. However, it is to be noticed that the loss due to compacting and that occasioned due to the traffic allowed on the road; without the tarring work having been completed, as also exposure to natural elements was not taken into account. Hence, though there would have been definitely a shortage, it is not to the extent projected in Exhibit P7. The computation in Exhibit P7 has been fully adopted by the Tribunal without looking into the reservations in the report itself, as to the possible causes for the shortage detected. The Government also, in considering the recommendations of the Tribunal on the basis of its findings, failed to go into this aspect.

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In the limited jurisdiction available to this Court, looking at the evidence, it has to be necessarily found that there was a shortage of metal used. But, however, the shortage is not to the extent indicated in Exhibit P7 report, since there were circumstances pointed out in Exhibit P7 report itself, which could provide for considerable deductions in the shortage assessed. The

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gravity of the offence, hence, has to be assessed on a reference to the quantum of shortage of the metal used and the probable loss caused to the Government. Considering the specific circumstances pointed out in Exhibit P7 report, this Court is of the opinion that the punishment awarded does not have a nexus with the gravity of the offence alleged. The punishment of withholding of three increments with cumulative effect, hence, would stand modified to withholding of three increments without cumulative effect.

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The writ petition is partly allowed, modifying Exhibits

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P4 and P6 to the extent indicated hereinabove. Parties are directed to suffer their respective costs.

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Sd/-

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K.Vinod Chandran Judge.

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vku/-

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[ true copy ]

Humayoon S. v. Deputy Secretary

Case brief

What is this about?

What did the court decide?

Humayoon S. v. Deputy Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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